Part I General Provisions
Topic 1 Civil legal relations
Test Point 1: The difference between civil legal relationship and non-civil legal relationship
First, the scope of adjustment: equality, between, personal relations, property relations
1. Distinguish between administrative and legal relations: management activities (not subject-based relationship, behavior-based relationship);
2. Distinguish between personal relationships that do not produce the effect of private law
(1) At your own risk: voluntary participation, cultural and sports activities with certain risks, damage caused by other participants, no tort liability may be requested, intentional or gross negligence, except for the organizer's security obligations
3. Distinguish between property relations that cannot produce private law effects:
(1) Good intentions: there is no intention to set up a legal relationship of rights and obligations; if there is no intended debt, it may produce a statutory debt (there is).
(2) Free-rider tort liability: non-operating motor vehicle, gratuitous passenger, negligence should be mitigated, intentional or gross negligence, except
Test Centre 2: Basic Principles of Civil Law
The nature is that the general terms and conditions are complementary to the application of law
1. The principle that legitimate rights and interests are protected by law: legitimate rights and interests, protected by law, and must not be infringed
2. The principle of equality: legal status, all equal
3. The principle of voluntariness: according to their own will
4. The principle of fairness: reasonable determination
(1) Handling of high-altitude projectiles: the infringer bears tort liability, it is difficult to determine the infringer, in addition to proving that he is not an infringer, the building user who may cause harm, compensation, compensation can be recovered after compensation, property service enterprises, unsafe safeguard measures, corresponding tort liability, and the public security organ is responsible for investigation
5. Principle of integrity: uphold integrity and abide by commitments
(1) Abuse of rights (2) Denial of legal personality (3) Draft validity of civil juristic acts with conditions for entry into force (4) Exile (pledge) clauses (5) Breach of contractual obligations (liability for contractual negligence and liability for breach of contract)
6. The principle of abiding by the law and public order and good customs
(1) Public order and good customs mediate conflicts of personal interests and public interests
(2) The contract is invalid and contrary to public order and good customs
(3) Violating the local purchase restriction policy shall not be found invalid on the grounds that it violates public order and good customs
7. Green principle: save resources and protect the ecological environment
(1) Contract performance: In the process of performing the contract, waste of resources, pollution of the environment and destruction of ecology should be avoided;
(2) Sale and purchase contract: the packaging method of the subject matter: it is conducive to saving resources and protecting the ecological environment
(3) Public order and good customs VS good faith: 1) good faith does not involve public interests and does not affect the validity of the contract 2) Public order and good customs mediate conflicts between individuals and public interests, and the contract is invalid
Topic 2 Civil Subjects
Section 1: Natural Persons
Test Centre 3: Protection of the Interests of the Fetus
Inheritance, acceptance of gifts, torts, protection of fetal interests, deemed to have, capacity for civil rights, dead body, non-existence from the beginning
(1) Principle without right capacity (2) Exception creation (3) Creation obligation contrary to public order and good customs is invalid (4) Deemed (5) Delivery of a dead body, which does not exist from the beginning
Test Point 4: Protection of the Personality Interests of the Deceased
1. Liability for damage to the civil interests of heroes and martyrs: For infringement of heroes and martyrs, whose names, likenesses, reputations, and honors harm the societal public interest, civil liability shall be borne by the Civil Code 185
2. Protection of the personality and interests of the deceased: name, portrait, reputation, honor, privacy, remains, etc., spouse, parents, children, and other close relatives (grandparents, maternal grandparents, grandchildren, grandchildren, siblings)
(1) Only the close relatives of the 8 categories of the deceased may claim compensation for moral damages
(2) The order is different
(3) The same order means autonomy, who wants to go who goes
(4) In the name of oneself, it is not the name of the deceased
(5) The compensation for moral damages shall be vested in the plaintiff, not the estate
Test Point 5: Civil Conduct Capacity of Natural Persons and Qualifications of Shareholders of the Company
1. Full capacity for civil conduct: adults, can independently carry out civil juristic acts; over 16 years old, with their own labor income as the main source of livelihood, regarded as full capacity for civil conduct
2. Limited capacity for civil conduct: over 8 years old, requiring the consent or retroactive recognition of legal representatives, but can be independently implemented, pure profit or adaptation, civil juristic acts
3. No capacity for civil conduct: under 8 years old, legal representative, agent
4. Equity inheritance: the death of a natural person shareholder, a legal heir, can inherit, and the articles of association provide otherwise
Section 2: Legal Persons
Test Centre 6: Capacity for Civil Rights and Capacity for Civil Conduct of Legal Persons
1. Legal person in the process of establishment: unincorporated, bearable by the founder, the founder is more than 2 persons, joint and several creditor's rights, joint and several debts, their own name, the right to choose (principle of contractual relativity, theory of bearing interests) Civil Code 75
2. Shareholder capital contribution: currency, physical goods, knowledge products, land use rights, valuation and transfer
3. The principle of relative invalidity of ultra vires powers: beyond the scope of business registration according to law, business activities, except for illegal laws and administrative regulations, (restricted operation, franchise, prohibited operation), does not affect the effect, (the principle is valid, prohibited, limited, special invalid)
4. Representation: legal representative, person in charge of an unincorporated organization, exceeding authority, other than the counterpart knows or should know, the representative's behavior is valid, and the contract is valid
Test Centre 7: Denial of Legal Personality (Abuse of Rights)
1. Denial of legal personality: abuse, independent status and limited liability, evasion of debts, serious damage to the interests of creditors, joint and several liability for debts of legal persons
(1) Who makes the decision and who is jointly (malicious shareholders) (2) One thing is denied, and the facts are discussed as it is (3) The burden of proof of the one-person company is reversed
Test Centre 8: Legal representative
1. Legal representative:
(1) The person in charge of civil activities on behalf of a legal person in accordance with the provisions of laws or articles of association.
(2) The legal person shall bear the consequences of engaging in the name of a legal person.
(3) The constitution or the right body, the restriction of the right of representation, and the prohibition against a bona fide third party
2. Liability for tortion of the legal representative's duties: performance of duties, legal persons. Later, in accordance with the provisions of the law or the articles of association, compensation may be recovered from the legal representative who is at fault
(1) Judge the representative (chairman, executive director, general manager) or agent (director, supervisor, legal affairs, department manager)
(2) The act of the representative is an act of duty (borne by a legal person) or an act of an individual (borne by oneself)
(3) Whether the new legal representative can negate the old legal representative's behavior, whether it can act personally, and whether it can not perform official conduct
Section 3: Unincorporated Organizations
Test Centre 9: Branches of legal entities
1. Unincorporated organizations
1. Type: Sole proprietorship, partnership, branch
2. Debt repayment: insufficient to pay off debts, investors or founders, unlimited liability
3. Branches of legal persons: in their own name, by legal persons, can also manage the property, deficiencies, legal persons bear
(1) Yes
(2) Liability: The branch company bears the civil liability of the head office; the subsidiary bears it alone
(3) Joint and several liability: Externally, a company or branch head office shall not bear joint and several liability;
Topic 3 Civil Juristic Acts
Test Centre 10: Establishment of Civil Juristic Acts
1. Establishment and effectiveness:
(1) Establishment (objective): except for practical civil juristic acts, the intention is consensual;
(2) Effective (subjective): The expression of intent is legal and true
2. Effect of civil juristic acts: effective at the time of establishment (unless otherwise provided or agreed by law), not in accordance with the provisions of the law or with the consent of the other party, and shall not be changed, rescinded, or civil juristic acts without authorization
Test Centre 11: Expression of Intent
1. The type of intention expressed and the effective time
1) Conversation mode: Know the content
2) Illegal dialogue method: Arrival
3) Data message form:
Specify a specific system, enter
No specific system specified, known or ought to have known to enter
l The effective time is otherwise agreed and followed by its provisions
2. Expression of intent of the announcement: Where the expression of intent is made by means of an announcement, it takes effect when the announcement is released.
Exam Centre 12: Valid Civil Juristic Acts
It does not violate the mandatory provisions on the validity of laws and administrative regulations, does not violate public order and good customs, expresses true meaning, and has the corresponding capacity for civil conduct
Exam Point 13: Invalid civil juristic acts: strong, public, subjective, intentional, evil
1. False expressions of intent and hidden acts
1. False expression of intent, invalidity (contrary to the principle of voluntariness)
2. Hidden civil juristic acts and handling in accordance with law
2. Mandatory provisions and public order and good customs
1. Licensing system (mandatory provisions on relative validity)
(1) Contract for the sale and purchase of commercial housing: the seller, who has not obtained the pre-sale license certificate, shall be found to be invalid, obtained before filing a lawsuit, and may be found to be valid
(2) Housing lease contract: the lessor, has not obtained the construction project planning permit, has not built in accordance with the construction project planning permit, the lease contract is invalid, before the conclusion of the first instance court debate, obtains and approves the construction, and shall be found to be valid
(3) Construction contract for construction projects: contractor, construction project planning permit, invalidity, before prosecution
2. Filing and registration system (administrative mandatory provisions)
(1) Contract for the sale and purchase of commercial housing: on the grounds that the pre-sale contract of commercial housing and the failure to file for registration, the request for confirmation is invalid and will not be supported. The agreement is to go through the filing and registration formalities, as a condition for taking effect, from its agreement, but has already performed the main obligation and the other party accepts, except
(2) Rent lease contract: the lease contract has not been registered, does not affect, and is effective
3. Malicious collusion: Malicious collusion (collusion with each other for private gain), harming the legitimate rights and interests of others, and invalid
Test Centre 14: Partially valid and partially invalid civil juristic acts
1. Flow (pledge) pledge clause: before the expiration of the debt performance period, the obligation cannot be performed when the agreed maturity is due, it belongs to the creditor, can only, and is paid in priority
2. Deposit contract
(1) Joint fixed deposit, grant, and approval
(2) The amount of the deposit is agreed, shall not exceed, 20% of the subject matter of the main contract, and the excess part shall not be generated and the deposit shall be effective
3. Invalid standard terms and disclaimers
(1) Invalidity of standard terms: unreasonable exemption or mitigation of liability, aggravation of liability of the other party, limitation or exclusion of the main rights of the other party.
(2) Invalidity of the exemption clause: Personal injury, intentional or gross negligence property damage is waived
4. The interest rate of the loan contract: more than 36% of the annual interest rate, invalid
5. Lease contract for more than 20 years: the lease term shall not exceed 20 years, and the excess part shall be invalid
Test Point 15: Civil juristic acts whose validity is pending
1. No authority to act as an agent
1. Where the actor does not have the right to act as an agent, exceeds the right of agency, or after the termination of the right of agency, he still carries out the act of agency, and has not been retroactively recognized by the principal, it will not be effective against the principal.
2. The counterpart may remind the principal and posthumously recognize it within 30 days from the date of receipt of the notice. Where the principal fails to make an indication, it is deemed to be a refusal to retroactively recognize. Before the act committed by the perpetrator is retroactively recognized, the bona fide counterpart has the right to revoke. Revocation shall be made by means of notification.
3. Where the act carried out by the actor is not retroactively recognized, the bona fide counterpart has the right to request the actor to perform the obligation or to request the actor to compensate for the damage suffered. However, the scope of compensation shall not exceed the benefits available to the counterparty at the time of retroactive recognition by the principal.
4. Where the counterparty knows or should have known that the actor has no right to act as an agent, the counterparty and the actor shall bear responsibility in accordance with their respective faults.
Exam Centre 16: Revocable Civil Juristic Acts
1. Major misunderstanding: major (main payment obligation) misunderstanding (self-cause), actor, people's court or arbitration institution
(1) Wrong understanding of the nature of the act: paid should be unpaid
(2) Wrong understanding of the other party: This does not include an error in understanding the natural people's ability to do things
(3) The understanding of the subject matter is wrong
2. Fraud: deliberately informing false facts and concealing facts
(1) Fraudulent means, contrary to true intentions, defrauded party, court or arbitration institution, revocation
(2) Fraud by a third party, contrary to true intent, known or ought to have known by the other party, the party being defrauded, a court or an arbitral institution
1) Negative fraud: In off-plan purchases, the developer informs the buyer that there will be a future..., which does not exist at the time of delivery
2) Property rights fraud: The fraud of the commercial entity causes the buyer to be unable to obtain the ownership of the house, and the defrauded party can request compensation of not more than 1 times the purchase price paid, (one house is sold, first sold and then arrived, first mortgaged and then sold, no pre-sale permit for commercial housing, demolition and resettlement compensation housing)
3. Coercion: one party or a third party, means of coercion, contrary to true intentions, coerced party, court or arbitration
4. Apparent unfairness: in a state of distress, lack of judgment, apparent unfairness at the time of establishment, injured party, court or arbitration
(1) False one penalty is ten, which constitutes a debt promised unilaterally, and the right of revocation may not be exercised on the basis of apparent unfairness
5. Extinction of the right of revocation: 1 year of knowing the cause of the matter; 90 days of knowing of a material misunderstanding; 1 year of termination of coercion; express or explicit waiver of the act; 5 years from the date of the act
Test Centre 17: Special Civil Juristic Acts
1. Conditional civil juristic acts:
(1) Conditions for entry into force and effectiveness at the time of achievement; (2) Conditions for termination and invalidity upon achievement
2. Fictional effect: conditional civil juristic act, improper obstruction, deemed conditional achievement, improper promotion, and deemed conditional failure
3. Civil juristic acts with a time limit: with an effective period attached, effective at the time of expiration, attached to the termination period, and invalid at expiration
Topic 4 Agency System
Test Centre 18: Abuse of Agency
1. Abuse of agency
(1) The agent shall not carry out a civil juristic act with himself or herself in the name of the principal, except with the consent or retroactive recognition of the principal
(2) The agent shall not carry out civil juristic acts in the name of the principal and other persons represented by himself at the same time, except for the consent or retroactive recognition of both parties to the principal
2. Responsibilities of agents
(1) The agent shall bear civil liability for non-performance or incomplete performance of duties, causing damage to the principal
(2) The agent and the counterpart maliciously collude to harm the lawful rights and interests of the principal, and are jointly and severally liable
Test Centre 19: Re-agent
1. If the agent needs to entrust a third party to act as an agent, he shall obtain the consent or retroactive recognition of the principal.
2. If the entrusted agent is agreed or retroactively recognized, the principal may directly instruct the third party to be transferred, and the agent shall only assume responsibility for the appointment of the third party or the instructions of the third party
3. Without consent or retroactive recognition, the agent shall be liable for the act of transferring the entrustment to a third party, except in an emergency and in order to protect the interests of the principal
Test Centre 20: Job Agent
Carrying out the work tasks of a legal person or unincorporated organization, within the scope of its authority, having effect on a legal person or an illegal legal person organization, restricting the scope of authority, and not confronting a bona fide third party
Test Centre 21: No Authorized Agent and Apparent Agent
1. Apparent agency: No, beyond, after termination, the act of agency is still carried out, the counterpart has reason to believe, and the act of agency is valid
1. Constituent elements:
(1) The actor does not have the right of agency, exceeds the right of agency, or after the termination of the right of agency, still carries out the act of agency;
(2) The bona fide third party has reason to believe that the actor has the right to act as an agent;
(3) The person shall bear the legal consequences.
2. Judgment: subjective good faith and no fault (fulfill the necessary review obligations); objectively there is a right appearance (introduction letter, blank contract with official seal or special seal of the contract, trading habits)
3. Contract validity: The signing effect of the agent without the right to be determined is to be determined, and the apparent agent is legal and valid
4. Legal effect: It must be borne by the principal (or himself), and the agent shall recover compensation after assuming responsibility. Note: The principal has fulfilled its contractual obligations and is deemed retroactive
5. Civil rights: the right of retroactive recognition, the right of denial, the right of third party reminder, and the right of revocation
6. It does not constitute a representation of the agent
(1) Forging or official seal contract authorization letter, or passing off the name of another person
(2) Authorization, loss or theft of official seal contract
(3) Termination of job relationship, announcement or notification in a reasonable manner, and shall be informed
Topic V Limitation of Actions
Test Centre 22: Scope of Application of the Statute of Limitations
1. The statute of limitations does not apply:
1) Stop infringement, remove obstruction, eliminate danger
2) Rights in immovable property and registered rights in movable property
3) Maintenance, alimony, alimony 4) Others
Exam Point 23: Suspension of Limitation of Actions
1. Suspension of limitation of actions: Within the last six months of the limitation period, the right to claim cannot be exercised due to the following obstacles, and the limitation period is suspended:
(1) Force majeure (unforeseeable, unavoidable, insurmountable, objective circumstances)
(2) A person without capacity for civil conduct or with limited capacity for civil conduct does not have a legal representative, or the legal representative dies, loses capacity, or loses the right to act;
(3) The heirs or administrators have not been determined after the inheritance has begun;
(4) The obligee is controlled by the obligor or other persons;
(5) Other obstacles that prevent the right holder from exercising the right to claim.
The limitation period expires after six months have elapsed since the date on which the cause of the suspension of the limitation period has been eliminated
Test Centre 24: Interruption of Limitation of Actions
1. In the following circumstances, the limitation period shall be recalculated (+3 years) from the time of interruption or the end of the relevant procedures:
(1) The obligee submits a request for performance to the obligor;
(2) The obligor agrees to perform the obligation,
(3) Initiation of litigation or arbitration, (4) others
Title II Property Rights
Topic VI Fundamentals of property rights
Test Centre 25: Protection of Property Rights
1. The right to claim property rights
(1) Confirmation of the right to claim property rights: In the event of a dispute over the property rights (ownership, content), the interested party may request confirmation of the rights
(2) The right to claim the return of the original: there is no right to possess, the owner, and the request for the return of the original property
2. Right to claim protection in possession:
(1) The movable or immovable property in possession has been encroached upon, and the person in possession has the right to request the return of the original property;
(2) The possessor has the right to request cessation of the infringement, removal of the obstruction and elimination of the danger for obstruction of possession; (3) the possessor has the right to claim damages for losses caused by possession or obstruction
(4) Possession of the right to claim the return of the property, the date of the misappropriation, within one year, extinguished
3. Restrictions on the period of protection of property rights
(1) Claim in rem:
1) Right to claim the return of the property:
immovable property: not subject to limitations (with registration system);
l Movable property: 1> special movable property, no, limitation period 2> ordinary movable property, general situation (between two persons) 3 years limitation period, special circumstances (involving a third party) 2 years exclusion period
2) Possession of the right to claim return: 1 year of exclusion period, the date of the occurrence of the misappropriation
(2) Claims: ordinary claims, 3-year statute of limitations, deposits and national salvation
4. Recovery of lost property: The owner or other right holder has the right to recover the lost property. If the lost property is in the possession of another person through transfer, the right holder has the right to claim damages from the person without the right to dispose of it, or to request the return of the original property from the transferee within 2 years from the date on which the transferee knew or should have known, but if the transferee purchased the lost property through auction or from a business operator with business qualifications, the right holder shall pay the fees paid by the transferee when requesting the return of the original property. After the right holder pays the fees paid to the transferee, it has the right to recover from the person without the right to dispose of it
Topic VII Ownership
Section 1 Changes in Property Rights
1. General change of property rights: the right to dispose, a valid contract, registration or delivery, a change in property rights, and a succession to acquisition
2. Change of special property rights: no right to dispose of, valid contract, registration or delivery, change of property rights, original acquisition, bona fide acquisition
Test Centre 26: The Principle of Distinction
1. The principle of differentiation between changes in property rights: failure to register property rights does not affect the validity of the contract
2. Remedies: liability for breach of contract, tort liability, return of unjust enrichment, alternative choice
(1) Breach of contract: legal and valid, liability for breach of contract, continued performance
3. The main points of the answer to the question of the validity of the contract (cannot be article).
Test Centre 27: Correction of Registration and Opposition Registration System (Buying a House in a Borrowed Name)
I. Correction Registration and Opposition Registration:
1. Where the right holder or interested party believes that the matters recorded in the real estate register are wrong, they may apply for correction of the registration. Where the obligee recorded in the immovable property register agrees in writing to correct or there is evidence to prove that the registration is indeed erroneous, the registration authority shall make the correction.
2. If the obligee recorded in the immovable property register does not agree to the correction, the interested party may apply for registration of the objection. Where the registration body registers the opposition, and the applicant does not file a lawsuit within 15 days from the date of the registration of the opposition, the registration of the objection shall become invalid. Where the registration of the objection is improper, causing damage to the right holder, the right holder may request damages from the applicant.
Second, the property rights certificate and the registration are inconsistent: the real estate ownership certificate is a product certificate, should be consistent, inconsistent, unless there is evidence to prove that the registration is wrong, the registration of real estate shall prevail. Publicize the principle of public credibility, presume that the registration is correct, and have the right to dispose of it
1. The interested party has not objected to registration, bought a house in litigation, has the right to dispose of it, is legal and valid, and has been acquired
2. Interested parties object registration, loss of litigation, purchase of house in litigation, right to dispose of, legal and valid, and subsequent acquisition
3. The interested party's objection registration, winning the lawsuit, the sale of the house in the litigation is retroactively recognized, has the right to dispose of it, is legal and valid, and is subsequently acquired
4. The interested party's objection registration, winning the lawsuit, the sale of the house in the litigation has not been recognized, there is no right to dispose of it, it is legal and valid, and it cannot be obtained in good faith
Test Centre 28: Advance Notice Registration System
1. Advance Notice Registration
1. The parties sign an agreement for the sale and purchase of a house or other agreement on the right to immovable property, guarantee the realization of the property right in the future, apply for advance registration, dispose of it without the consent of the right holder of the advance notice registration, dispose of it, and do not take effect on the property right.
2. After the advance registration, the creditor's rights are extinguished or the real estate registration can be carried out, and the registration is not registered or invalid within 90 days
2. Acquisition of property rights by factual acts: when legal construction or factual acts are accomplished, property rights are acquired
1. Objection registration (street name to buy a house): does not hinder the creditor's right, does not hinder the property right, only hinders but obtains it in good faith, within 15 days from the date of opposition registration
2. Advance registration (the sale of one house in the sale and purchase of off-plan houses) does not hinder the creditor's rights but only the property rights, 90 days from the date on which the real estate registration can be carried out
Test Centre 29: Movable Property Delivery System
1. Simple delivery: movable property rights, before establishment and transfer, have been legally possessed, and become effective when the civil juristic act takes effect
2. Instructions for delivery: movable property rights, before the establishment and transfer, the legal possession of a third party, the request for a third party to return the right to the original property through the transfer, and the replacement of delivery
3. Modification of possession: when the right of movable property is transferred, it is agreed, continued to be possessed, and when the agreement takes effect, the effect of the property right is issued
Exam Point 30: Changes in property rights not based on civil juristic acts
1. Change of property rights due to public power: legal documents (limited right judgment, payment judgment does not immediately lead to a change in property rights), expropriation decision, when it takes effect
2. Change in property rights due to inheritance: at the beginning of inheritance (only inheritance, multiple inheritance is not immediate)
3. Change of property rights due to factual acts: when the factual acts are accomplished (breach of contract, infringement, preemption, loss, management without cause, unjust enrichment, invention, creation, discovery, attachment)
Test Centre 31: Acquired in good faith
1. Acquisition in good faith: no right to dispose, subjective good faith and no gross negligence, objective payment of reasonable consideration, registration or delivery
2. Effectiveness in good faith: After the movable property is acquired in good faith, the original right is extinguished, when it is transferred, the right is known or should have been known, except
3. No right to dispose of: it will not affect the validity of the contract
Test Centre 32: Collection of Lost Movable Property
1. Announcement period of lost property: from the date of announcement, within 1 year, unclaimed, returned to the state
Test Centre 33: Add a system
Attribution of property rights (processing, conformity, mixing), agreement to comply with the contract, no contract according to the law, no law according to the utility and protection of the property without fault, one party has the fault compensation, no fault caused by the other party damage compensation
Section 2 Differentiated ownership of the owner's building
Test Centre 34: Membership
I. Matters jointly decided by the owners (Article 278):
(1) Formulating and amending the rules of procedure of the owners' meeting;
(2) Formulating and revising management statutes;
(3) Electing the owners' committee or replacing the members of the owners' committee;
(4) Selecting and dismissing property service enterprises or other managers;
(e) the use of funds for the maintenance of buildings and their ancillary facilities;
(f) to raise funds for the maintenance of buildings and their ancillary facilities;
(7) Reconstructing or reconstructing buildings and their ancillary facilities;
(8) Changing the use of the common part or using the common part to engage in business activities;
(9) Other major matters concerning the right of co-ownership and co-management.
The owners jointly decide on the matters, and the owners who account for more than two-thirds of the exclusive part of the area and the owners who account for more than two-thirds of the number of owners shall participate in the voting.
Decisions on the matters provided for in items 6 to 8 of the preceding paragraph shall be subject to the consent of the owners who participated in the voting of more than three-fourths of the exclusive part of the area and more than three-quarters of the owners who participated in the voting.
Decisions on other matters in the preceding paragraph shall be subject to the consent of the owners who participated in the voting of a majority of the area of the exclusive part and the owners of the majority of the number of people participating in the voting.
Test Centre 35: Housing reform business system:
Residential transformation into commercial housing, in addition to complying with laws, administrative regulations, management regulations, with the unanimous consent of interested owners
(1) The owner of the building is automatically regarded as an interest (2) The owner of the other building believes that the quality of life and the value of the house are affected, and proves the interest himself
Test Centre 36: Maintenance Funds
1. Attribution and Use
(1) The situation of the common part, (maintenance, renewal, transformation) and maintenance funds shared by the owners of the whole community, used for (elevator roof external wall barrier-free facilities) is regularly announced
(2) Emergency, owners' meeting or owners' committee can apply for use
(3) Raise a defense that the statute of limitations does not apply
Test Centre 37: Partial attribution of proceeds
Construction units, property service enterprises, income generated by the use of common parts, deduction of reasonable costs, and common ownership by owners
Test Centre 38: The Owner's Right to Supervision
1. The property or other manager, according to the owner's entrustment (basic contract, with special applications), manage the building and ancillary facilities, accept the owner's supervision, and respond to the owner's inquiries
2. Property service enterprises or other managers shall implement the emergency disposal measures and other management measures implemented by the government in accordance with law, and actively cooperate in carrying out relevant work
Exam Point 39: Rights of Owners, Owners' Assembly or Owners' Committee
1. The rights of the owners, the owners' general meeting or the owners' committee
(1) The behavior meets the requirements of saving resources and protecting the ecological environment. Property service enterprises or other managers shall cooperate in accordance with law in implementing emergency management and disposal measures and other management measures implemented by the government in accordance with law.
(2) Owners' meeting or owners' committee, acts that harm the legitimate rights and interests of others (to stop the infringement, remove the obstruction, eliminate the danger, restitute the original state, compensate for losses)
(3) The owner or other actor, who does not perform his obligations, the relevant party, may report or complain to the administrative department, the administrative department, and deal with it according to law
2. Code of conduct of animal breeders: Raising animals shall abide by laws and regulations, respect social morality, and not hinder the lives of others.
Section 3: The Common Ownership System
Exam Point 40: Equity Transfer of Pre-Emptive Rights vs. LLC by Co-Owner
1. Pre-emptive right of co-owners by share: co-owners by share, transferable, share enjoyed, other co-owners, equal conditions, pre-emptive right
2. Exercise of the pre-emptive right of co-owners by share: co-owners by share, transfer of shares, shall be notified in a timely manner, other co-owners shall exercise within a reasonable period of time, two or more co-owners shall claim, negotiate, and follow the proportion of their respective common shares at the time of transfer
3. Shareholding of co-ownership pre-emptive right VS limited liability company by share:
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Share by share
Limited Liability Company
Institutional attribution
Civil system
Commercial System
Hierarchy of restrictions
A single-layer restriction in the sense of a law of conduct
A two-tiered restriction in the sense of organic law and conduct law
Inheritance issues
When the subject of the right to the co-ownership shares changes due to inheritance, bequests, etc., and other co-owners of the shares claim to be purchased in preference, they will not be supported, unless otherwise agreed between the co-owners of the shares
When a natural person shareholder dies, his or her legal heirs may inherit the qualifications of the shareholders. However, unless otherwise provided in the Articles of Incorporation
Natural person shareholders have changed due to inheritance! If other shareholders claim to exercise the pre-emptive right, the court will not support it, unless otherwise provided in the articles of association of the company or otherwise agreed by all shareholders
Internal Transfer
Where the joint shares are transferred between the co-owners by share, and other co-owners of the shares claim the pre-emptive purchase, it shall not be supported, unless otherwise agreed
Shareholders may transfer all or part of their shares to each other
External transfers
Freedom of transfer
A shareholder who transfers equity to a person other than a shareholder shall notify the other shareholders in writing or other reasonable means that can confirm receipt of the equity transfer to obtain consent. With the consent of a majority of the other shareholders
Exercise period
The period for the exercise of the right of first refusal shall be determined by the agreement between the co-owners in accordance with the shares; if there is no agreement or the agreement is unclear, it shall be determined in accordance with the following circumstances: (1) if the period of exercise is specified in the notice issued by the assignor to the other co-owners of the same conditions; (2) the period of exercise is not specified in the notice, or the period specified is less than 15 days from the date of service of the notice; (3) if the assignor does not notify, it is 15 days from the date on which the other co-owners know or should have known of the equivalent conditions that were finalized ;(4) If the assignor has not notified and is unable to determine the equivalent conditions known or ought to have been known to other co-owners in accordance with the shares, it shall be 6 months from the date of transfer of ownership of the co-ownership shares
Where a shareholder claims to purchase the transferred equity in pre-emption, he shall, after receiving the notice, submit a request for purchase within the exercise period specified in the articles of association of the company. If there is no provision or unclear provision in the articles of association of the company, the period determined by the notice shall prevail, and if the period determined by the notice is shorter than 30 days or the period of exercise is not specified, the period of exercise shall be 30 days
When the court transfers the equity of a shareholder in accordance with the enforcement procedure prescribed by law, it shall notify the company and all shareholders that other shareholders have the right of pre-emption under the same conditions; if the other shareholders do not exercise the right of pre-emption for 20 days from the date of notification, it shall be deemed to have waived the right of pre-emption
Same conditions
Quantity, price, payment method, term
same
Conflict resolution
More than two propositions, consultations, and consultations are not proportional to the shares
Exercise Restrictions
If more than half of the other shareholders do not agree to the transfer, those who do not agree shall purchase the transferred equity; if they do not purchase, they shall be deemed to have agreed to the transfer
Topic VIII Usufructuary rights
Test Centre 40: Land Contract Management Rights
1. Publicize confrontationalism
(1) Establishment and confirmation of the right to land contractual management: when the contract takes effect, the registration authority issues a certificate to register and confirms the right to land contractual management
(2) The effect of registration of the circulation of the right to land contractual management: the right to land contractual management (exchange, transfer), without registration, shall not be opposed to a bona fide third party
2. Circulation of land management rights:
(1) Circulation of land management rights: independent decision, leasing, shareholding, other means, circulation of land management rights
(2) Confrontational effect of the circulation of land management rights: land management rights with a circulation period of more than 5 years, the establishment of the circulation contract when the circulation contract takes effect, and shall not be used against a bona fide third party without registration
(3) Special circulation of land management rights: contracting rural land, obtaining ownership certificates through registration, and can (leasing, shareholding, mortgage, other ways) and transferring land management rights
Test Centre 41: Right of Residence
1. Concept: The owner of the right of residence has the right to enjoy (possession, use) of the usufructuary right to other people's residences in accordance with the contract to meet the needs of living and living
2. Right of residence vs right of lease:
(1) Legislative purpose: to protect the interests of residence
(2) Nature of rights: usufructuary rights vs claims
(3) Essentials: Written contract (will) VS lease period of more than 6 months in writing
(4) Duration: Can exceed 20 years VS varies from more than 20 years
(5) Registration effect: registration effectiveness VS registration and filing
(6) Paid or not: can be paid or not, the principle of free VS paid
(7) Limitation of rights: non-transferable, non-inheritable, non-leasable (except for other contracts) VS there is a contract to comply with the contract, and it is not equal to unauthorized sublease
(8) Extinction: expiration of the term or death (external cancellation of registration) VS expiration of the lease term
Exam Point 42: Easement
1. The establishment and registration of the easement is effective against the three persons in good faith: the contract is established when it comes into effect, and it shall not be used against the bona fide three without registration
(1) Essential contract (2) Subordinate rights (3) Established, land contract management right, without consent, land owner, shall not establish easement
Topic IX Security interests
Section 1 Basic Principles of Security Interests
Test Centre 43: Establishment of Guarantee Contracts and Compensation for Fault
1. Guarantee contracts include: mortgage contracts, pledge contracts, and other contracts with guarantee functions
2. Subordinate contract: invalidity of the main debt creditor's contract, invalidity of the guarantee contract, and other provisions of the law (the agreement is not allowed)
3. Liability: The guarantee contract is confirmed to be invalid, (the debtor, guarantor, creditor) is at fault, and each bears the corresponding responsibility
4. Independent guarantee: The parties agree to exclude the invalidity of the subordinate attribute of the guarantee, but the intention of the parties is true, and according to the theory of the transformation of invalid acts, it should also be converted into a general subordinate attribute guarantee.
Exam Point 44: Scope of Security in a Security Interest
The main claim and its interest, liquidated damages, damages, custody of the secured property, the cost of realizing the security interest, and other agreements are subject to the agreement (the agreement that is greater than the part of the main debt is invalid)
Exam Point 45: Representation in Rem of a Security Interest:
Secured property, (damage, loss, expropriation), holder of the security interest, obtained (insurance, indemnity, compensation), preferential reimbursement, performance period has not expired, deposit
Exam Point 46: Effect of Transfer of Claims on Security Interests (Dependent Attributes):
The third party provides security, without its written consent, with the permission of the creditor, transfers the debt in whole or in part, and no longer bears the corresponding guarantee liability
Test Centre 47: Coexistence of Property Insurance and PICC:
1. There is both property security and security, and if the mature debts are not performed, the creditor's rights shall be realized as agreed;
2. If there is no agreed order, the debtor himself shall provide the guarantee for the property, and the claim shall first be realized in respect of the property security
3. The third party provides security in rem, the creditor can choose, the security in rem realizes the claim or the guarantor bears the guarantee liability,
4. The third party bears the guarantee responsibility and has the right to recover from the debtor (the guarantors shall not recover from each other)
Section 2 Mortgage Rights
Test Centre 48: Collateral
1. Mortgageables: the right to use the sea area, can be mortgaged together
2. Non-collateralized items
(1) The right to use land for construction purposes of township and village enterprises shall not be mortgaged separately and may be mortgaged together with buildings such as factories
(2) The right to use land owned by collectives such as land ownership, (sealing, seizure, and supervision) property, disputed property (ownership, use right), non-profit legal person established for public welfare purposes (educational facilities, medical and health facilities, and other public welfare facilities), illegal buildings, (homesteads, self-reserved land, and self-retained mountains).
3. Treatment of new buildings: After the mortgage of the right to use the land for construction purposes, the new buildings are not mortgaged property. When the right to use the land for construction purposes is realized, it is disposed of together with the newly added building, but the proceeds from the disposal of the new building do not have the right of priority to be reimbursed
4. Mortgage of premises separately: Based on the rules of the integration of premises, it is regarded as the same property, and the order of repayment is determined
Test Centre 49: Establishment of Mortgage Rights
1. Mortgage of immovable property
(1) Establishment of mortgage right in immovable property: at the time of registration
1) The principle of distinction: no mortgage registration, valid mortgage contract, security obligation, should assist in registration, but the mortgage right has not been established, there is no guarantee liability, and there is no right of priority to be reimbursed
2) Establishment of real estate mortgage contracts: loss of collateral, transfer, resulting in the inability to register the mortgage, creditors requesting to bear responsibility up to the value of the collateral, court support, the scope shall not exceed, and when it is effectively established, the responsibility that should be borne
2. Mortgage right of movable property: the mortgage contract is established when it comes into effect, and it is not registered against a bona fide third party (the mortgage right of land management right is also)
Test Centre 50: Floating Mortgage on Movable Property
1. Effect of registration of floating mortgages on movable property: it shall not be against buyers who are in normal business, have paid a reasonable price and acquired the mortgaged property,
2. Movable property floating mortgage and general mortgage competition: after the establishment of floating mortgage, some properties set movable property mortgage, mortgage registration, registration of the first floating mortgage is preferred to the subsequent movable property mortgage
3. Price guarantee: movable property mortgage, guarantee is the mortgage price, registration within 10 days after delivery, priority over other guarantors to be reimbursed, except for the right of retention
Exam Point 51: Conflict Resolution of Mortgage Rights and LeaseHolding Rights
1. The principle of establishment first: before the establishment of the mortgage right, it has been leased and transferred to possession, and the lease relationship is not affected by the mortgage right
(1) Leasing behavior: neither the right to dispose nor the right to dispose of, the creditor-debtor relationship, and the burden behavior
Test Centre 52: Collateral Transfer System
1. Early transfer of collateral
(1) The mortgage period, can be transferred, there is an agreement to be agreed, and the mortgage right is not affected
(2) The mortgagor shall promptly notify the mortgagee of the transfer of the mortgaged property. If there is a possibility of damage, the mortgagee may request (early repayment, deposit), the part of the transfer price that exceeds the claim shall be paid by the mortgagor, and the insufficient part shall be repaid by the debtor
Exam Point 53: Collateral Dependent Properties
1. The right of mortgage shall not be transferred separately from the claim or used as security for other claims. Where a claim is transferred, the mortgage right guaranteeing the claim shall be transferred at the same time, unless otherwise provided by law or agreed by the parties
2. If the transferee claims to exercise the right of mortgage against the mortgagor, and the mortgagor claims that the transferee is not a party to the mortgage contract, and has not gone through the registration of the change and has not been defended, the court will not support it
Exam Centre 54: Preservation of Mortgage Rights
1. The mortgagor's behavior is sufficient to reduce the value of the mortgaged property, and the mortgagee has the right to request the mortgagor to stop.
2. If the value of the mortgaged property is reduced, the mortgagee has the right to request restoration or provide a guarantee corresponding to the reduced value.
3. The mortgagor does not restore the value of the mortgaged property, does not provide security, and has the right to request early repayment of the debt
Exam Centre 55: Disposition and Effect of Mortgage Rights (409)
1. The mortgagee may waive the mortgage right or the order of the mortgage right. The mortgagee and the mortgagor may agree to change the order of the mortgage right and the amount of the secured claim. However, if the change of the mortgage right is not agreed in writing by the other mortgagee, it shall not adversely affect the other mortgagee.
2. Where the debtor creates a mortgage with its own property and the mortgagee waives the mortgage right, the mortgage right is in order or changes the mortgage right, the other guarantors are exempted from the guarantee liability to the extent that the mortgagee loses the preferential right to be repaid, except where the other guarantors promise to still provide security.
Test Centre 56: Order of Repayment of Mortgage Rights
1. Order of repayment of mortgage rights (414): the proportion of registered time, registered before unregistered, unregistered
2. Resolution of the conflict between mortgage right and pledge right (415): The time for establishing the mortgage right and establishing the pledge right and registering the delivery is determined successively
Exam Centre 57: Duration of exercise of mortgage rights
1. The period for exercising the mortgage right: the limitation period for the main claim litigation (the period prescribed by the statutory, agreed or registration department of the property right is invalid)
2. Legal consequences after the expiration of the limitation period for the main claim: the mortgage right is not exercised within the limitation period of the main claim litigation, and after the expiration of the limitation period for the main claim action, the mortgagee requests the registration and support of the written off mortgage right
Test Centre 58: Maximum Mortgage
1. Claims that existed before the establishment of the maximum amount of mortgage may, with the consent of the parties, be transferred to the scope of claims secured by the maximum amount of mortgage
2. Before the determination of the claim secured by the maximum amount of mortgage, the transfer of part of the claim, the right of mortgage of the maximum amount shall not be transferred, unless otherwise agreed
3. In order to secure the performance of the debt, the debtor provides secured property for the claims that have occurred continuously within a certain period of time, and the debtor does not perform the mature debts, and the mortgagee has the right to be paid in priority for the secured property within the maximum amount of the claim
4. Declaration of bankruptcy and determination of creditor's rights
5. During the period of the guarantee that the maximum amount of the guarantee is not agreed upon, the guarantor has the right of arbitrary rescission and may unilaterally notify the rescission unilaterally at any time, and the guarantor shall bear the guarantee liability for the claims that have occurred before the notice reaches the creditor
Section 3: The Right of Pledge
Test Centre 59: Pledge of movable property
1. Establishment of a pledge of movable property: The pledge is established from the time of delivery of the pledged property
Test Centre 60: Pledge of Rights
1. Fund shares and equity pledges
(1) Where fund shares or equity are pledged, the pledge shall be established when the pledge is registered
(2) After the fund shares and equity are pledged, they shall not be transferred, except after the pledgee and the pledgee have negotiated and agreed.
(3) The proceeds from the transfer of fund shares and equity by the pledgee shall be paid off or deposited in advance
2. Restrictions on the establishment of pledges of accounts receivable and the transfer of rights
(1) Pledge of accounts receivable shall be established from the time of registration of pledge
(2) It shall not be transferred after the pledge, except for the agreement of the pledgee and the pledgee through consultation
(3) The proceeds of the transfer shall be paid off or deposited in advance
3. No right to dispose of the pledge: the pledgee has no right to dispose of the pledge, the material is delivered in good faith, can be obtained in good faith, the pledge contract is a single-service gratuitous contract, and does not require reasonable consideration for the transfer
Section 4: Right of Retention
Test Centre 61: Lien
1. Conditions for the establishment of the right of retention
1. The claim has matured;
2. Lawful possession of the debtor's movable property;
(1) Movable property: The object of the right of retention can only be movable property
(2) Lawful possession:
1) Lawful: the creditor takes possession of the debtor's movable property based on the nature of the contract,
a creditor who is in possession of the debtor's movable property as a result of the tortious act and is not in lawful possession may not claim lien
The person who found the lost property is not in lawful possession and may not claim a right of retention
2) Possession: Simply holding is not eligible for a lien
(3) The possession of movable property and the occurrence of claims are based on the same legal relationship;
(1) Possession is related to the claim
(2) A commercial lien is not required to be based on the same legal relationship
4. Do not violate the provisions of the law and the agreement of the parties.
(1) Movable property whose circulation is prohibited by law,
(2) Movable property that the parties have agreed not to be retained,
(3) Must not violate public order and good customs
Second, the realization of the right of retention: leniency
1. The lien holder and the creditor shall agree on the period for the performance of the debt after the lien has been retained,
2. If there is no agreement or the agreement is unclear, the lien holder shall give the debtor a performance period of more than 60 days, except for fresh and easy corrosion.
3. Overdue performance, lien persuasion can agree with the debtor to discount the price, also auction and sell, priority repayment
4. Discount or sale shall refer to the market price
3. Extinction of the right of retention: loss of possession, acceptance of separate security
Part III General Provisions of the Law of Debts
Topic 10 Statutory Classification System for Debts
classify
subdivision
Intended debts
Debts of unilateral promises
Contractual debts
A debt of nature
Debts for which the statute of limitations has expired
Gambling debts, drug money, prostitution funds and other illegal debts
Bonds with an annual interest rate of 24%-36% private lending
Limit inheritance to debts beyond the scope of the estate
bride price
Statutory debts
Tortious debts
No debt for management
Unjust enrichment debts
Contractual negligence debts
Exam Point 62: Debt of Nature: The claim exists, the court may not be requested to enforce it, and the debtor shall not request the return of unjust enrichment after payment
Exam Centre 63: Unilateral Promises
1. Effective time of the expression of intent of the announcement: The expression of intent is made by means of the announcement and takes effect when the announcement is released
2. Bounty advertising: declare in a public manner that the person who completes the specific actor, pays the remuneration, and completes the act can request payment
Test Centre 64: No Debt due to management
1. Identification of management without cause
(1) The administrator cannot determine or agree on the obligations, in order to avoid the damage to the interests of others, manage the affairs of others, may request the beneficiary to reimburse the necessary expenses, and compensate for the losses suffered due to management;
(2) Management affairs do not conform to the true intentions of the beneficiaries, and do not enjoy the rights mentioned in the preceding paragraph; except for the beneficiaries' true intentions that violate the law or public order and good customs
2. Obligations of the manager
(1) Management methods and management interruptions: The manager manages the affairs of others and should adopt methods that benefit the beneficiaries. Interruption management is more disadvantageous to the beneficiary and cannot be interrupted without a valid reason.
(2) The administrator's obligation to notify and accept instructions: the administrator manages the affairs of others, can notify in a timely manner, does not need urgent treatment, and should wait for the beneficiary's instructions
(3) The administrator's reporting and property transfer obligations: the end of management, reporting to the beneficiary on the situation of management affairs, property acquired by management affairs, and timely transfer to the beneficiaries
Exam Point 65: Debt of Unjust Enrichment
(1) The beneficiary has no legal basis to obtain improper benefits, and the injured person may request the profiteer and return the benefits;
(2) Except for payment for the performance of moral obligations, repayment before the maturity of debts, and payment of debts that are known to have no obligation to pay
2. The obligation of the beneficiary to return
(1) Obligation of return of the bona fide beneficiary: the beneficiary does not know and should not know, the profit has no legal basis, the benefit obtained no longer exists, and does not bear the obligation of return
(2) Malicious beneficiaries: know or should know, there is no legal basis for the profits, and the person who suffers losses may request the return of the benefits obtained and compensate for the losses
3. Obligation to return to a third party without compensation: The beneficiary has transferred the profit and the free party to a third party, and the injured person may request a third party to bear the obligation of return within the corresponding scope
Topic 11 The Doctrinal Classification System of Debt
Exam Centre 66: Debt of a Single and Debt of the Majority
1. Single debt: The creditor and the debtor are one person
2. Debts of the majority: one or more of the creditors and the debtor
1. Debt by share:
(1) Two or more creditors, the subject matter may be divided, according to the share, each enjoying the claim;
(2) Two or more debtors, the subject matter can be divided, according to the share, each bears the debt.
(3) The share is difficult to determine, deemed, and the share is the same
2. Joint and several debts:
(1) Meaning
1) Joint and several claims: The creditors are two or more, and some or all creditors can request the debtor to perform the debt
2) Joint and several debts: If the debtor is more than two, the creditor may request some or all of the debtor to perform all the debts
3) Joint and several claims or joint and several debts shall be prescribed by law or agreed upon by the parties.
(2) Internal relations
1) Joint and several debtors, the share is difficult to determine, and the share is regarded as the same.
2) The actual assumption of more than one's own share, the excess part, the unfulfilled share of other debtors, the recovery, the enjoyment of creditor rights, the prohibition of harm to the interests of creditors, and the defense of other debtors against creditors may be claimed against the debtor.
3) If the joint and several debtors who are recovered are unable to perform their share of the share they should share, the other joint and several debtors shall share in proportion to the corresponding scope.
(3) Rules for the performance of joint and several debts
1) Where a partial and joint debtor performs or sets off a debt or deposits the subject matter, the debts of the other debtors are extinguished within the corresponding scope; the debtor may recover from the other debtors in accordance with the provisions of the law.
2) Where the debts of part of the joint and several debtors are discharged by the creditor, the debts of the other debtors to the claim shall be extinguished within the scope of the share that the joint and several debtors should bear.
3) Where part of the debts of the joint and several debtors and the creditor's claims are attributed to the same person, the creditor's claims against the other debtors continue to exist after deducting the share that the debtor should bear.
4) Where the creditor's payment to part of the joint and several debtors is delayed, it shall be effective against the other joint and several debtors
(4) Rules for the exercise of joint and several claims: creditors whose shares are difficult to determine, deemed, have the same share, and are actually received, proportionally, returned to other creditors
Exam Point 67: Debt of Property, Debt of Services and Debt of Money
1. Debts of property:
(1) Specific debts: the property itself is not fungible, and it is destroyed before delivery and is exempted from continued performance obligations;
(2) Types of debts: fungible, loss before delivery, not exempt from the obligation to continue to perform
2. Labor service debt: non-performance or performance that does not conform to the agreement, cannot be compulsorily performed, and bears the cost of substitute performance by a third party
3. Monetary debt: a debt with the payment of money as the content, unless prescribed by law or otherwise agreed, in the legal tender of the place of actual performance
Exam Point 68: Debt of Simplicity and Debt of Choice
1. Simple debt: There is only one kind of performance target
2. Debt of Choice:
(1) Unless there are several subject matters of performance of the debt, the debtor has the right to choose, the law stipulates otherwise, or there are other trading habits.
(2) The agreed period or performance period expires, no choice is made, and after being reminded, the choice is not selected within a reasonable period of time, and the right of choice is transferred to the other party
3. Exercise of the choice of debt:
(1) The parties exercising their right of choice shall promptly notify the other party, and notify the arrival of the notice and the determination of the subject matter. The subject matter shall not be changed after it has been determined, except with the consent of the other party.
(2) If the subject matter of the optional subject cannot be performed, the subject matter that cannot be performed shall not be selected, unless the failure to perform is caused by the other party
Part IV Contracts
Topic XII Fundamentals of Contracts
Exam Centre 69: TheOry classification of contracts
1. National Planning Contract:
(1) The State shall conclude contracts in accordance with the provisions of emergency rescue and disaster relief or epidemic prevention and control, and the issuance of orders or directive tasks, and the relevant civil entities shall conclude contracts in accordance with law.
(2) A party with an obligation to make an offer shall make a reasonable offer in a timely manner.
(3) The party with the obligation of commitment shall not refuse or reasonably conclude the request.
2. Reservation and this agreement (sale and purchase of commercial housing):
(1) Reservation contract: The parties agree to conclude the contract within a certain period of time in the future (subscription letter, order letter, reservation letter, letter of intent). If one of the parties fails to perform its obligation to conclude a contract, the other party may request to bear the liability for breach of contract of the reservation contract, and the rescission of the contract claims damages, and shall not be compulsorily performed
3. Third party interest contract:
(1) The parties agree that the debtor shall perform the debt to a third party, and if the debtor fails to perform to the third party or the performance is not in accordance with the agreement, it shall bear the liability for breach of contract to the debtor;
(2) The law provides or the parties agree that a third party may request the debtor to perform its obligations to it, and the third party may request to bear the obligation if it fails to perform the obligation within a reasonable period of time, fails to perform the obligation or does not conform to the agreement;
Topic XIII Conclusion of contracts
Exam Centre 70: The Difference Between An Offer and an Offer
1. Meaning and Elements of an Offer (472): An expression of intent wishing to conclude a contract with another person, which should conform to: the content is specific and clear;
(1) Undertaking: Expression of intent of the offeree to agree to the offer
3. The meaning and type of invitation to make an offer: it is hoped that others will issue invitations, commercial advertisements and publicity to themselves, and the content complies with the provisions of the offer and constitutes an offer
(1) Sale and purchase of commercial housing:
1) The sales advertisement and promotional materials of commercial housing are an invitation to make an offer, but the description and promise of the house and related facilities are specifically determined, and the contract formation and the price of the house are regarded as an offer.
2) Even if the explanation and promise are not included in the contract for the sale and purchase of commercial housing, they shall be regarded as the contents of the contract, and if the parties violate it, they shall bear the liability for breach of contract
(2) Unqualified quality: defective performance in improper performance
Test Centre 71: Fulfill the rules of healing
1. The time of formation of the contract
(1) When the written contract is signed or fingerprinted by both parties, the contract is formed; before the signature and seal, when one party has fulfilled its main obligations, and when the other party accepts it, the contract is formed;
(2) The contract shall be concluded in writing by laws, administrative regulations or by agreement of the parties, and the contract shall be formed when the parties have not adopted the written form but one party has fulfilled its main obligations and the other party accepts it
2. No right to act as an agent: The principal has already begun to perform the contractual obligations, or accepts the performance of the counterparty, which is regarded as the retroactive recognition of the contract
Test Centre 72: When the contract was formed (online shopping)
1. Where the parties conclude a contract in the form of letters, data messages, etc., and the contract is formed when the confirmation is signed, the contract is formed.
2. If one of the parties publishes information on goods or services through the Internet and meets the conditions of the offer, the other party selects the goods or services and submits the order successfully, the contract is formed, unless otherwise agreed by the parties.
Test Centre 73: Standard Terms (Contract)
1. Identification
(1) The parties, for the purpose of reuse, advance drafting, and conclusion of the contract, have not consulted with the other party
(2) Provide the standard terms party, follow the principle of fairness, remind the other party in a reasonable way, and explain the major interest clauses as required
(3) Failure to perform the obligation to indicate and explain, resulting in lack of attention or understanding, material interest clause, which can be claimed, and the clause does not become the content of the contract
2. Invalid situation: the party providing the standard terms, unreasonablely exempting or reducing the liability, increasing the liability of the other party, restricting the main rights of the other party, and excluding the main rights of the other party
3. Interpretation of standard terms: in the event of a dispute, according to the usual understanding, interpretation, two or more interpretations, should be made unfavorable to the provider, the standard terms and non-standard terms are inconsistent, and non-standard terms are used
Test Centre 74: Contractual Negligence Liability
1. Contractual negligence liability: in the process of concluding the contract, the other party shall bear the liability for compensation caused by the losses caused by the contract 1) Under the pretext of concluding the contract, malicious consultation
2) Deliberately concealing important facts or providing false information
3) Contrary to the principle of good faith
2. Infringement of trade secrets: in the process of concluding the contract, the trade secrets or other confidential information known, regardless of whether the contract is established, shall not be leaked or improperly used, causing losses to the other party, and bear the liability for compensation
Test Centre 75: Independence of Dispute Resolution Clauses:
The validity of clauses that do not enter into force, revocation, invalidity, termination, etc. of the contract and do not affect the method of dispute resolution
Topic XIV Performance of contracts
Test Centre 76: Supplementary Rules for Contract Performance 【Understanding】
1. After the contract takes effect, it may be supplemented by agreement
1. The price or remuneration is not clear: the market price at the time of conclusion of the contract, the market price of the place of performance, the government pricing (guidance price) that should be implemented according to law, and the performance in accordance with regulations
2. The place of performance is not clear: 1) the payment currency, the location of the party receiving the currency, and the performance; 2) the delivery of the real estate, the location of the real estate, the performance; 3) the location and performance of other subjects and the party performing the obligation;
3. The performance period is not clear: 1) the debtor, at any time to perform; 2) the creditor, at any time to request performance, should be given the necessary preparation time;
4. The mode of performance is not clear: it is conducive to the realization of the purpose of the contract and the performance;
5. The burden of performance costs is not clear: the burden of the party performing the obligation, the increase of the performance cost due to the creditor's reasons, and the creditor's burden
Test Centre 77: Performance of Electronic Contracts
1. Electronic contracts concluded through the Internet
1. Delivery of goods by courier: the signing time is the delivery time;
2. Provision of services: The time specified in the voucher is the time for providing services; the time that is not stated or stated is inconsistent with the actual situation and the actual service is subject to the time
3. The subject matter is delivered by online transmission: entering the designated and specific system of the other party, and being able to retrieve the identification time and delivery time;
4. There is a covenant to follow the covenant
Test Centre 78: Three major defenses for the performance of dual-service contracts
1. Simultaneous performance of the right of defense: mutual liability, no priority, should be at the same time, before the other party performs the right to refuse, the other party's performance is not in accordance with the agreement, the right to refuse the corresponding performance request
2. The right to first perform the defense: mutual liability, precedence, should be first, the performing party has the right to refuse, the first performing party performance is not in accordance with the agreement, and the latter has the right to refuse the corresponding performance request
3. Right to defend uneasiness: it should be first, there is definite evidence of the following circumstances, it can be suspended, there is no precise evidence to suspend, and the liability for breach of contract
(1) Serious deterioration of business,
(2) Transferring property, withdrawing funds to avoid debts,
(3) loss of business reputation,
(4) loss or possibility of incapacity to perform debts,
4. Exercise of the right to defend against uneasiness:
(1) Where performance is suspended in accordance with the preceding paragraph, the other party shall be promptly notified.
(2) The other party provides a guarantee and resumes performance.
(3) After the suspension, if the other party does not restore its ability to perform within a reasonable period of time and does not provide a guarantee, it is deemed that the performance of the main obligation is not performed by the act, and the suspension of performance can terminate the contract and request liability for breach of contract
Test Centre 79: Handling of Special Circumstances in Contract Performance
1. Difficulty in performance: Creditor (merger, division, change of domicile), failure to notify the debtor, resulting in difficulties in performance, the debtor may suspend or deposit the subject matter
2. Early performance: the creditor may refuse, but does not harm the interests of the creditor, except for the increased costs and the burden on the debtor
3. Partial performance: The creditor may refuse, except for not harming the interests of the creditor, increased expenses, and burdens borne by the debtor
4. The change of the parties does not affect the performance of the contract: after the contract takes effect, the parties shall not change or fail to perform the obligations of the contract due to (name, title, legal representative, person in charge, undertaker).
Topic XV Preservation of contracts (exception to the principle of relativity of contracts)
Test Centre 80: Subrogation
1. Constituent elements
(1) The creditor's claim to the debtor, debtor to sub-debtor, and claim is legal and mature
(2) The debtor has neglected to exercise its rights and has endangered the creditor's claim
(3) The debtor's claim is not exclusive to the debtor
2. Early exercise of creditor subrogation rights: before the creditor's claim expires, the debtor's right to sue is about to expire or the bankruptcy claim is not declared in time, affecting the realization of the creditor's claim, the creditor may subrogate and perform to the debtor
3. Scope of exercise: The creditor's due claim is limited
4. Litigation status: the creditor plaintiff, the sub-debtor defendant, and the debtor are not unique
5. Transfer of the right of defense: The counterparty's defense against the debtor may be claimed against the creditor
6. Litigation costs: the creditor exercises the right of subrogation, the necessary expenses, and the debtor bears
7. Proceeds of successful litigation: The court found that the subrogation right was established, and the debtor's counterpart performed its obligations to the creditor
8. Legal effect: after the creditor accepts the performance, the corresponding rights and obligations between the creditor and the debtor, the debtor and the counterparty, and the termination
9. Limitation of actions: The creditor initiates a subrogation action, the creditor's claim and the debtor's claim, both occur, and the limitation period is interrupted
Exam Point 81: Creditor Avoidance Right (Creditor Avoidance of Legal Acts of Debtors and Their Counterparts)
(1) The creditor has a legal claim against the debtor
(2) Subjectively the debtor has the malice of harming the creditor's claim
(3) Objectively, the debtor has committed an act of infringing the creditor's right and has endangered the creditor's claim
2. Litigation status: The creditor plaintiff, the debtor defendant, and the debtor's counterpart are not unique
3. Consequences of avoidance: The debtor's counterpart returns the property to the debtor
4. Necessary costs of litigation: in principle, the debtor shall bear the burden, and the debtor's counterpart shall be at fault and appropriately shared
5. The period of exclusion of the right of avoidance: 5 years on the date when the creditor knows the cause of avoidance, does not exercise, extinguishes the right of avoidance, and does not know
6. Note: 8 kinds of fraudulent acts committed by the debtor to harm creditor's rights:
(1) waiver of claims (mature and unmature claims),
(2) Waiver of Guarantee,
(3) Extension of collusion (postmortem mortgage in bad faith, malicious collusion in extending the performance period of matured claims), (4) and knowledge (obviously unreasonable low-price transfer and the transferee knows, obviously unreasonable high-priced transfer and the assignor knows)
(5) Gratuitous transfer
7. The right of inheritance is both property and personal; it is generally believed that the right of revocation of the right of inheritance cannot be claimed
Topic 16 Modification and assignment of contracts
Test Centre 82: Assignment of Creditor's Rights (Internal and External Differences + Notice)
1. Effective time of the contract for the assignment of creditor's rights: the principle of relativity of the contract, the conclusion of the agreement on the assignment of creditor's rights, and the effect of the transfer of creditor's rights between the two
2. The time when the assignment of the creditor's rights takes effect on the debtor: the debtor receives the notice
3. The assignment of the creditor's rights is not notified to the debtor: the assignment of the creditor's rights shall be notified to the debtor, and the debtor shall not be notified without notice, and shall not produce external effects
4. Revocation after notification of the debtor: In principle, it shall not be revoked, except with the consent of the transferor
5. Joint and several guarantor liability for the assignment of creditor's rights: within the scope of the original guarantee, continue to bear, the debt does not change, does not increase the guarantor's liability, and does not require the consent of the guarantor
6. Limitation period: assignment of creditor's rights, limitation of actions, interruption and recalculation when the notice of assignment reaches the debtor
7. The creditor's transfer of the creditor's claim is too limited to the statute of limitations, and the assignee's remedy: based on the legal and valid transfer agreement, the creditor is held liable for defective security, that is, the liability for breach of contract
8. The debtor receives notice to pay off: the creditor is assigned, the original creditor withdraws from the original debt relationship, does not enjoy the creditor's rights and debts, and the assignee replaces the transferor as a new creditor
9. The debtor still performs to the original creditor after receiving the notice:
(1) Invalid, after notifying the debtor, the debtor can only perform to the assignee;
(2) The original creditor constitutes unjust enrichment (no legal reason, one party benefits, one party suffers, and there is a causal relationship between the benefit and the damage)
10. Debtor's defense: The debtor receives notice, the right of defense is transferred, the defense against the assignor, and can claim against the assignee
11. Debtor's right of set-off: the principle of maturity first, when receiving the notice of assignment, the debtor has a claim against the assignor, and the claim expires before the assigned claim, and the debtor can claim set-off
12. The assignee entrusts the transferee to accept the performance on behalf of the debtor: the principle of the relativity of the contract, the transferor accepts the performance on behalf of the transferee, and the non-contract parties and the debtor bear the liability for breach of contract to the assignee
Exam Centre 83: Debt Assumption (Internal and External Difference + Consent)
1. The transfer of debts without the consent of the creditor: the internal validity and external invalidity, the debtor's transfer of the debt, should be subject to the consent of the creditor, without consent, does not produce external effects
2. The creditor signs a debt assumption agreement with a third party: the creditor may sign the agreement in the manner of signing the agreement, express consent, and transfer the debt
3. The debtor and the third party agree to issue an IOU, and the creditor signs the IOU: the concurrent assumption of creditor's rights, the debtor's non-detached relationship, and the third party joins, without special agreement. Joint and several liability with the debtor
4. Debtor non-performance of all transfer of debts: based on the principle of contractual relativity, the transfer of all debts, the relationship between the original debtor and the debt, non-contractual parties, and the new debtor bear the liability for breach of contract
5. Transfer of defence and prohibition of set-off:
(1) The debtor transfers the debt and the new debtor may claim the original debtor's defense against the creditor
(2) The original debtor does not have a claim against the creditor, and the new debtor may not claim set-off against the creditor.
Topic 17 Termination of rights and obligations under contract
Test Centre 84: Settlement in Lieu of Goods
1. Concept: In the process of performing the debt, the creditor receives other kinds of payment instead of the original payment, and the creditor's rights and debts are extinguished
(1) Debt-in-kind agreement: The promise of sincerity is effective immediately, the two debts coexist, and the creditor has the right to choose
2. Constituent elements: the existence of the original debt, the two parties agree to replace the original payment with other kinds of payment, reach the agreement to pay off in kind, and actually receive the payment
3. After the expiration of the performance period, an agreement in kind is reached:
(1) After the expiration of the performance period, it has not yet been delivered, the creditor requests the debtor to deliver, and the court focuses on examining whether it maliciously harms the legitimate rights and interests of the third party and supports it.
(2) The first-instance procedure reaches a debt in kind, withdraws the lawsuit, may be granted, the second-instance procedure is concluded, the appeal is withdrawn, the withdrawal of the lawsuit should be informed, the application for withdrawal of the lawsuit is not applied, the court is requested to issue a mediation statement, because the debtor can fully perform the agreement immediately, there is no need to issue a mediation statement, so it is not allowed, and the original creditor-debtor relationship should continue to be tried
4. Reach an agreement in kind before the expiration of the performance period: the debt has not yet been delivered, the creditor requests delivery, the court shall explain, the lawsuit shall be filed in accordance with the original creditor's rights and debts, the litigation claim is refused to be changed, the refusal is rejected, and the lawsuit will not be affected by the separate litigation based on the original creditor-debtor relationship
Test Centre 85: Liquidation Credit
1. Concept: The debtor bears several debts of the same type to the same creditor, and the payment is insufficient to pay off all the debts, unless otherwise agreed, and the debts designated by the debtor to perform.
2. The debtor has not specified:
(1) The first performance has expired;
(2) Debts that are due, first performed without security or least guaranteed,
(3) There is no guarantee or equal guarantee, the burden of first performance is heavier,
(4) Same burden, first maturity,
(5) Same expiration, proportional
Test Centre 86: Clearing Order
If the debtor pays interest and related expenses in addition to the performance of the main debt, the payment is insufficient to pay off all the debts, and unless otherwise agreed, the order of performance is, and the cost-interest-main debt is
Test Center 87: Contract Termination 【Required】
1. Statutory right of rescission
1. General statutory right of rescission (563):
(1) Force majeure, causing, or not being able to achieve the purpose of the contract
1) During the period of isolation, the people's government implementing the isolation measures shall provide subsistence support for the quarantined persons; if the isolated persons have a work unit, the unit where they work must not stop paying them for their work during the isolation period.
(2) Before the expiration of the performance period, one party expressly expresses or acts out, does not perform the main obligation, and the non-defaulting party discharges or holds the other party liable for breach of contract
(3) A party delays performance, fails to perform within a reasonable period of time after being reminded, and the non-breaching party is discharged or pursued for breach of contract
(4) Delay in performance or other breach of contract, resulting in or inability to achieve the purpose of the contract
(5) Other laws and regulations
(6) Indefinite contracts for the continuous performance of obligations, rescission at any time, before a reasonable period of time, and notice to the other party.
(7) Change of circumstances (533):
1) Before the completion of the performance after the conclusion of the contract, it is unforeseeable, it is not a major change that is not a commercial risk, the continued performance is obviously unfair, the adverse effect can be renegotiated, the negotiation cannot be concluded within a reasonable period of time, the court or arbitration is requested, and the modification is terminated
2) The court or arbitration institution shall modify or terminate according to the principle of fairness in light of the actual situation of the case
2. Special statutory right of rescission (arbitrary right of rescission):
(1) Indefinite lease contract: both parties, terminate at any time, and notify each other before a reasonable period of time
(2) Irregular property service contract: both parties, at any time, terminate at any time, 60 days in advance of written notice
(3) Indefinite partnership contract: partners, rescission at any time, and notification of other partners within a reasonable period of time
(4) Entrustment contract: the two parties, at any time, the termination of the contract caused by the loss of the other party, in addition to the reasons for which the party cannot be attributed,
1) The party terminating the gratuitous entrustment contract shall compensate for the direct losses caused by the improper termination time
2) The party terminating the contract of paid entrustment shall compensate, direct losses and benefits that can be obtained
(5) Discipline contract: both parties
(6) Custody contract: the depositor, the two parties who have no time to keep
(7) Contracting contract: the contractor, causing losses to the contractor, shall be compensated
(8) Contract of carriage: Before the carrier delivers, the shipper may require the carrier to suspend the carriage, return the goods, change the place of arrival or deliver the goods to other consignees, but shall compensate the carrier for the losses suffered as a result
(9) Travel contract: tourist
1) Before the end of the tour itinerary, the tourist can cancel the contract;
2) The travel agency shall refund the remaining amount to the tourist after deducting the necessary expenses.
3. Exercise and effect of the right of rescission
(1) Exercise of the right of rescission
1) Exercise period: legal provisions or agreements, the time limit for the exercise of the right of rescission, the failure to exercise at the expiration of the term, and the extinction of the right of rescission. If there is no provision in law or the parties have not agreed, the right holder of the right of rescission shall not exercise or extinguish it within one year from the date on which the person with the right of rescission knows or should have known the cause of rescission, or within a reasonable period of time after being reminded by the other party
2) Exercise mode (565):
l If one party claims to be terminated in accordance with law, it shall notify the other party, and it shall be lifted when the notice reaches the other party;
l The contract is automatically terminated if it is not performed within a certain period of time, and if it is not performed within the time limit, it is terminated when the period specified in the notice expires;
l If the other party has an objection, either party, within 3 months of the arrival of the notice, request the court or arbitration, confirm the effect of rescission.
l In the event of a non-notice, direct litigation or arbitration claim for rescission, a court or arbitration institution confirming the claim, a copy of the self-complaint or a copy of the claim for arbitration is served on the other party
(2) Validity
1) Legal consequences of contract termination (566)
Termination of performance after rescission, non-performance;
l If it is discharged due to breach of contract, it may request to bear the liability for breach of contract, unless otherwise agreed
l After the rescission, the guarantor shall still bear the guarantee liability, unless otherwise agreed in the guarantee contract
2) Scope of validity of contract rescission (567): The termination of contractual rights and obligations does not affect the validity of the settlement and liquidation clauses in the contract
Question: Does Company A have the right to terminate the contract with Company B? Why?
Exam Point 88: Offset
I. Statutory Set-off:
1. Active claims have matured: The parties bear debts to each other, the subject matter (type and quality) is the same, and either party can set off its own debts against the debts of the other party when they are due, and the agreement or statutory non-set-off is not allowed
2. Notification obligation: The parties claim set-off, should notify the other party, the notice reaches the other party to take effect, and the set-off shall not be conditional or time-limited
2. Intended set-off: mutual liabilities, different subject matter (type, quality), consensus, and set-off
III. Nature of the Right of Set-Off:
1. Right of formation: Unilateral expression of intent produces private law effects
2. The right of simple formation: it can be exercised by means of notification, or by filing a defense or counterclaim
(3) The expression of intent of set-off shall take effect from the time of arrival at the other party, and once the set-off has become effective, and the effect retroactively and the conditions for set-off shall be fulfilled, the debts owed by the parties shall be extinguished within the same amount
Test Centre 89: Deposit [Understanding]
I. Reasons for Deposit (570): In any of the following circumstances, it is difficult to perform the obligation, the debtor may deposit the subject matter:
(1) the creditor refuses to receive it without justifiable reasons;
(2) The whereabouts of the creditor are unknown;
(3) The creditor dies without identifying an heir or estate administrator, or losing capacity for civil conduct without identifying a guardian;
(4) Other circumstances provided for by law.
If the subject matter is not suitable for deposit or the cost of deposit is too high, the debtor may auction or sell the subject matter in accordance with law and deposit the proceeds.
2. Subject matter to be deposited (571): When the debtor delivers the subject matter or the proceeds from the auction or sale of the subject matter to the depository department in accordance with the law, the deposit is established. If the deposit is established, the debtor shall be deemed to have delivered the subject matter within the scope of its deposit.
3. Effect of deposit
1. Between the debtor and the creditor: the deposit is completed, the debt is extinguished, if the debtor pays off separately, the depositor retrieves the deposit
(1) Notice of Deposit (572): After the subject matter is deposited, the debtor shall promptly notify the creditor or the creditor's heirs, estate administrators, guardians and property custodians.
2. Between the depositor and the deposit department: the deposit department has the obligation to properly keep the deposited goods, and if the depository department is damaged due to poor storage of the depository department, it shall bear the liability for compensation according to law
3. Between the deposit department and the creditor: after the subject matter is deposited, the risk of damage and loss shall be borne by the creditor. During the deposit period, the fruits of the subject matter are owned by the creditor. The cost of deposits is borne by the creditor
4. Collection of deposits
1. Creditors can receive it at any time. However, if the creditor has a debt due to the debtor, the depository department shall, at the request of the debtor, refuse to receive the deposit before the creditor has performed the obligation or provided security
2. The creditor's right to receive the deposit shall be extinguished if it is not exercised within 5 years from the date of deposit, and the deposit shall be owned by the State after deducting the deposit fee. However, if the creditor fails to perform the obligations due to the debtor, or if the creditor renounces the right to receive the deposit in writing to the depository department, the debtor shall have the right to retrieve the deposit after bearing the deposit costs
Test Centre 90: Waived
Where a creditor discharges part or all of the debtor's debts, the creditor's rights and debts are partially or completely terminated, unless the debtor refuses within a reasonable period of time.
Test Centre 91: Mixed
Where claims and debts belong to the same person, the claims and debts shall be terminated, except where the interests of a third party are harmed.
Topic 18 Liability for Breach of Contract
Test Centre 92: Constituent Elements of Liability for Breach of Contract (There is a breach of contract, there is no reason for exemption)
1. There is a breach of contract:
(1) Liability for breach of contract for delay in acceptance: the debtor performs the obligation, the creditor refuses to accept the payment without justifiable reasons, compensates for the increased costs, the period of delay, and no interest is paid.
2. No reason for exemption:
(1) Reasons for exemption from liability for breach of contract:
1) Unless it cannot be performed due to force majeure, according to the impact, partial or full exemption from liability, except as otherwise provided by law
2) If it cannot be performed due to force majeure, the other party shall be notified in time and proof shall be provided within a reasonable period of time
Test Centre 93: Form of Liability for Breach of Contract
1. Continue to perform
(1) Liability for breach of contract of non-monetary debts: a party's non-performance or performance is not in accordance with the agreement and can be requested to perform. Exceptions:
1) Legally (sold in quantities) or in fact (damaged or lost) can not be performed,
2) The subject matter of the debt is not suitable for compulsory performance (service debts),
3) Except in the preceding paragraph, if the purpose of the contract cannot be achieved, through the court or arbitration, the contract is terminated, and the liability for breach of contract is not affected
(2) Liability for breach of contract of labor debts: non-performance or performance that does not conform to the agreement, the nature of the debt cannot be compulsorily performed, the request is burdened, and the cost of third party substitution performance
2. Take remedial measures:
(1) Defect performance of liability for breach of contract: performance is not in accordance with the agreement, liability for breach of contract according to the agreement, no agreement or unclear, reasonable choice, (repair, rework, replacement, return, reduction of price or remuneration)
3. Damages
(1) Damages: After non-performance or non-compliance with the agreement, continued performance or remedial measures, there are other losses and compensation losses
1）
(2) Predictability rules: a party's non-performance or non-compliance with the agreement, compensation for losses caused by breach of contract, including benefits that can be obtained after performance, but not exceeded, at the time of conclusion of the contract, the breaching party foresighted or should have foreseen, and may cause losses
1) Applicable conditions: the foresight subject is the breaching party, the foreseeing time is the time of conclusion of the contract, the foreseeing content is the type and type of damage, in order to prevent the scope of compensation from being too broad
2) Loss of available benefits: The non-breaching party should have obtained benefits due to the breach of contract, but did not actually obtain them. Loss of available benefits shall be subject to the rule of predictability
(3) Derogation rules: one party breaches the contract, the other party should take measures to prevent the expansion of losses, does not take appropriate measures, cannot claim compensation for the expanded losses, reasonable expenses to support the expansion of losses, and bears the burden of the breaching party
4. Liquidated damages
(1) Rules for the application of liquidated damages: liquidated damages may be agreed upon, and if the damages are agreed to be lower than the losses, the court or arbitration shall increase them according to the request, excessively higher than the losses, and the court arbitration shall reduce them; delay performance, payment of liquidated damages, and continue to perform
(2) Payment of liquidated damages and taking of remedial measures can be used together
(3) The agreed liquidated damages exceed 30% of the loss and are excessively higher
5. Deposit
(1) Deposit liability
1) The parties may agree that the deposit shall be used as a guarantee for the debt, the deposit contract shall be established, and shall be established when the deposit is actually delivered. 2) The agreement shall not exceed 20% of the subject matter of the main contract, the excess part shall not produce the effect of the deposit, the actual delivery shall not be consistent with the agreement, and shall be deemed to be a modification of the agreement
(2) Deposit penalty: the party paying the deposit does not perform, resulting in the purpose of the contract can not be realized, has no right to request return; the party receiving the deposit does not perform, resulting in the inability to achieve the purpose of the contract, double return of the deposit
1) Sale and purchase of commercial housing: pre-purchase method, deposit as contract guarantee, non-attributable to both parties, failure to conclude the contract, return of deposit
(3) The choice of liquidated damages and deposits applies: both the liquidated damages and the deposits are agreed, and the non-defaulting party can choose
(4) Deposit judgment: the payment of liens, guarantees, contracts, deposits or deposits, without agreeing on the nature of the deposit, claiming the right to the deposit, and not supporting
Test Centre 94: Liability for breach of contract by both parties
Both parties are in breach of contract, each bears corresponding responsibilities, one party breaches the contract and causes the other party's losses, and the other party is at fault, and the corresponding loss compensation can be reduced
Exam Point 95: Principle of Relativity of Liability for Breach of Contract:
1. Liability for breach of contract caused by a third party: one party bears the liability for breach of contract to the other party due to the reasons of the third party, in accordance with the law, between one party and the third party, in accordance with the agreement or statutory treatment
Subdivision II Typical Contracts
Topic 19 Sale and Purchase Contracts
Test Centre 96: Sale and Purchase Contract Without Right to Dispose of
1. Requirements for the subject matter of the sale and purchase contract: because the seller has not obtained the right of disposal, the ownership of the subject matter cannot be transferred, and the buyer can rescind the contract and request to bear the liability for breach of contract. Transfers are prohibited or restricted by law, in accordance with their provisions
(1) The sale and purchase contract gives rise to a creditor-debtor relationship, does not directly lead to a change in property rights, and does not require the seller to have ownership rights in principle when concluding the contract
2. Article 3 of the Interpretation of the Contract for the Sale and Purchase of Commercial Housing:
Test Centre 97: Burden of Risk in The Sale and Purchase Contract
1. Meaning: After the conclusion of the contract, the damage or loss of the subject matter due to the non-attributable party of the party
2. Principle: There is a covenant to follow the covenant
3. Exceptions
(1) Delivery doctrine (all movable and immovable property apply): before delivery, seller, post-delivery, buyer, legal agreement otherwise
(2) Ownershipism
1) Default first:
Risk burden of delay on receipt by the buyer: the buyer's reasons, failure to deliver within the agreed period, the buyer, from the time of breach of the agreement, bears the risk of damage and loss
Risk burden of the buyer not accepting the subject matter: the seller is placed at the place of delivery in accordance with the agreement or statutory law, the buyer does not receive it in violation of the agreement, and from the time of the breach of the agreement, the buyer bears the risk
l Warranty liability and risk burden for defects in the subject matter: the quality of the subject matter does not meet the requirements, the purpose of the contract cannot be achieved, the buyer can refuse to accept or rescind the contract, and the risk is borne by the seller
2) Goods in transit: the seller sells the goods to be transported by the carrier, the goods in transit, unless otherwise agreed, from the time the contract is formed, the buyer bears;
(3) The principle of distinction:
1) The breach of the payment obligation does not affect the transfer of risk: the seller does not deliver the documents and materials of the subject matter in accordance with the agreement, and does not affect the transfer of the risk of damage or loss of the subject matter
2) The risk burden does not affect the liability for breach of contract: if the risk of damage or loss of the subject matter is borne by the buyer, it does not affect the buyer's right to request the seller to bear the liability for breach of contract because the seller's performance of obligations is not in accordance with the agreement
(4) Consignment on behalf of the consignment
1) Risk burden of delivery of goods to the first carrier:
After the seller transports the subject matter to the place designated by the buyer and delivers it to the carrier in accordance with the agreement, the risk of damage or loss of the subject matter shall be borne by the buyer
l The buyer bears the risk of damage and loss after the parties have not agreed on the place of delivery or the agreement is unclear, and after the subject matter is delivered to the first carrier (the buyer may pursue the seller's breach of contract (optional negligence) based on the entrustment contract due to the loss of the carrier; the carrier shall be held liable for tort based on ownership)
Test Centre 98: Seller's Warranty Obligation for Defects
1. Special Agreement on Warranty Liability for Defects (618): The parties agree to reduce or exempt the seller's warranty liability for defects, because the seller is intentional or grossly negligent, does not inform the buyer of the defects in the subject matter, and the seller has no right to claim mitigation or exemption
Test Centre 99: Buyer's Obligation to Test
1. The treatment of the agreed short period during the inspection period: the agreed inspection period is too short, according to the nature and trading habits, it is difficult to complete the inspection, and it is deemed that the appearance defects are objected to. The agreed inspection period or guarantee period is shorter than that of laws and administrative regulations, and shall be subject to laws and administrative regulations
2. Handling not agreed during the inspection period: unsettled inspection period, confirmation of the delivery note signed by the buyer, indication (quantity, model, specification), presumption, inspection of the number of appearance defects, and evidence sufficient to overturn
3. Handling of inconsistencies in the agreement on the inspection standards: the seller shall deliver to the third party in accordance with the instructions of the buyer, the test standard agreed upon by the seller and the buyer, the inconsistency with the agreement between the buyer and the third party, and the test standard agreed upon by the seller and the buyer shall prevail
Test Centre 100: Seller's Obligation to Recycle (625)
If, in accordance with the provisions of laws or administrative regulations or in accordance with the agreement of the parties, the subject matter shall be recovered after the expiration of the effective period of use, the seller shall have the obligation to recover the subject matter on its own initiative or by entrusting a third party
Test Centre 101: Attribution of Fruits in the Sale and Purchase Contract
Fruits arising prior to delivery of the subject matter shall be owned by the seller; The fruits arising after delivery shall be owned by the buyer. However, unless otherwise agreed by the parties.
(1) Contracts applicable to other contracts for the ownership of the subject matter of the transfer
(2) The lease contract adopts "ownership doctrine" and is owned by the lessor
Test Centre 102: Three types of special sales and purchase contracts
1. Installment sale and purchase contract (at least 3 times)
(1) Seller's rights: If the buyer fails to pay the price due, the amount reaches 1/5, after the reminder, and the reasonable period of time has not been paid, the seller may request payment of the full price or rescission of the contract
1) Unilateral modification of the contract: the buyer is required to pay the remaining price in one lump sum
2) Unilateral rescission of the contract: the seller may request the buyer to pay royalties, and the buyer shall have the right to request the seller to return the principal and interest of the price paid).
(2) Limitation of actions: Calculated from the date of expiration of the last period of performance
2. Trial sale and purchase contract
(1) Meaning: The parties agree that the buyer shall try or inspect the subject matter, and the contract of sale and purchase shall be conditional on the buyer's approval of the subject matter.
(2) Probationary period: there is an agreement to follow the contract, and the contract is determined by the seller. During the probationary period, the buyer has the option of purchase or not to purchase (right of formation). At the expiration of the probationary period, if the buyer does not make an indication, it is considered a purchase.
(3) Royalties: If the parties to the trial sale have not agreed on the royalties of the subject matter or the agreement is unclear, the seller shall not have the right to request payment from the buyer.
(4) Agree to purchase.
1) Silence: If there is a probationary period agreed upon, if the probationary period expires, it is deemed to be purchased.
2) Presumption
A. The seller requests return of the subject matter after the subject matter has been delivered to the buyer on a trial basis, and the buyer refuses to return it.
B. If the buyer has paid part of the price during the probationary period, it shall be deemed to have agreed to the purchase
C. If the buyer sells, leases, or creates a security interest in the subject matter during the applicable period, it shall be deemed to have agreed to the purchase (Note: The third party did not acquire it in good faith)
(5) Risk burden: The risk of damage or loss of the subject matter during the probationary period shall be borne by the seller.
3. Contract for the sale and purchase of retention of title in movable property (atypical security)
(1) Meaning: Retention of title, unregistered, not against a bona fide third party
(2) Right of retrieval (less than 75% of the price paid)
1) Subject: Seller (before all transfer of the subject matter, unless otherwise agreed)
2) Reasons for exercising power:
Failure to pay the agreed price, and failure to pay within a reasonable period of time after being reminded;
Failure to complete certain conditions as agreed;
Sale, pledge or other improper disposition of the subject matter (acquired in good faith by a third party, the seller claims to retrieve it, and the court does not support it)
3) Note:
The seller and the buyer may negotiate retrieval, fail to negotiate, and refer to the procedures for the realization of the security interest;
l The value of the subject matter retrieved is significantly reduced, and the loss is compensated
(3) Redemption
1) Subject: Buyer
l After the seller retrieves the subject matter, the parties agree or the seller specifies the redemption period, the reason for the removal of the subject matter may be eliminated and redemption may be requested;
l If there is no redemption during the redemption period, the seller may sell;
The proceeds of the sale, after deducting the unpaid price and necessary expenses of the original buyer, there is still a surplus returned to the buyer and insufficient to the original buyer to pay off
Test Centre 103: One thing sold
1. The number of immovable property is sold
1. Sell before changing the registration: have the right to dispose of it, and the sale and purchase contract is legal and valid
2. The number of movable property is sold
Ordinary movable property
Special movable property
Validity of the contract
All valid
Sort the results
The first to receive delivery > the first to pay the price> the contract is formed first
The first to receive delivery > first to register> the contract is formed first
Topic 20 Gift Contracts
Test Centre 104: Recognition of Gift Contracts
1. The donor gives his or her property free of charge and the recipient accepts it;
2. Free acquisition, unpaid consideration, legal acts of both parties
Test Centre 105: The donor's right to revoke at will
I. The donor's right of arbitrary revocation and limitations:
1. Revocation: Before the transfer of property rights, the donor can revoke,
2. Restrictions: Notarized gift contracts, contracts that cannot be revoked according to law (disaster relief, poverty alleviation, assistance to the disabled), etc., (public welfare, moral obligation nature) contracts, cannot be revoked
Test Centre 106: Defect Warranty Liability of the Donor
1. If the donated property is defective, the donor shall not be liable. In the case of a gift with obligations, if the property donated is defective, the donor bears the same responsibility as the seller within the limits of the obligation attached.
2. If the donor deliberately fails to inform the defect or guarantees that there is no defect, causing the loss of the recipient, he shall bear the liability for compensation.
Test Centre 107: Statutory Right of Revocation of Gift Contracts
1. The donor's statutory right of revocation: exercised within 1 year from knowing or should have known the cause of revocation
(1) Seriously infringe upon the lawful rights and interests of the donor or his close relatives
(2) There is an obligation to support the donor and the donor is not fulfilled
(3) Failure to perform the obligations stipulated in the gift contract
2. The legal right of revocation of the heirs or legal representatives: Due to the illegal acts of the donee, the donor's heirs or legal representatives may revoke the deceased or lose the capacity for civil conduct due to the illegal acts of the donee; they may be exercised within 6 months from knowing or should have known or should have known or revoked the reasons
3. Return of donated property: the right holder of revocation, the revocation of the donation, the possibility to the recipient, the request for return, and the donation of property
4. The difference between conditional gift contract and obligation gift contract:
(1) Conditional: refers to the effect of affecting the donation contract;
(2) Attached obligations: refers to the obligations that the donee should perform, and whether or not the recipient should perform or not has nothing to do with the validity of the gift contract
Test Centre 108: Statutory Right of Rescission of Gift Contract (Right of Poverty Defence)
The donor's economic situation has deteriorated significantly, seriously affecting production and operation or family life, and may no longer perform the gift obligation
Topic 21 Loan Contracts
Test Centre 109: Loan Contracts Between Natural Persons
Practice contract, when providing a loan, is established
Test Centre 110: Assignment Security System (Atypical Guarantee)
Concept: The debtor or a third party transfers the subject matter to another person in order to secure the performance of the obligation, and when the obligation is not performed, the person may be paid in priority for the subject matter;
1. The contract of assignment itself is legal and valid (generally speaking);
2. The exile clause stipulated in the contract is partially invalid, and the other parts are valid;
3. If the disclosure of the change of property rights is not completed, and the debtor is not repaid when due, the creditor may auction, sell or repay the debt at a discount, but does not enjoy priority in repayment
4. It has been made public that the creditor may request to repay the claim at auction, sale or discount of the property with reference to the provisions of the security interest, and enjoy the right of priority to be reimbursed
5. If the debtor has not paid off when due, he has the right to take the initiative to request the auction, sale or discount of the property to repay the debts owed to the creditor under the contract
Topic 22 Guarantee Contracts
Test Centre 111: Fundamentals of Warranty Contracts
1. Master-slave contractual relationship:
(1) The guarantee contract is from the contract: the main creditor's rights and debts contract is invalid, the guarantee contract is invalid, unless otherwise provided by law, and the parties may not agree;
(2) The guarantee contract is confirmed to be invalid: (the debtor, guarantor, creditor) is at fault and bears the corresponding civil liability according to their respective faults
2. Restrictions on guarantors: government legal persons (except for re-lending approved by the State Council), non-profit legal persons for the purpose of public welfare, illegal legal person organizations, and must not be guarantors
3. The way to conclude the guarantee contract
(1) Separately conclude a guarantee contract;
(2) The guarantee clause in the main creditor's rights and debts contract;
(3) A third party unilaterally and in writing guarantees to the creditor, the creditor receives and has no objection, and the contract is guaranteed to be formed;
(4) The main contract has no guarantee clause, the guarantor, in the main contract, as the guarantor, signed, and the guarantee contract is formed
(5) Verbal assurances proved by two or more uninterested persons (the only one does not require writing).
Test Centre 112: Guarantee Methods [Subversive Legislation Is Important]
1. The method and presumption of guarantee: the guarantee contract is not agreed, or the agreement is not clear, in accordance with the general guarantee, bear the guarantee liability
2. Loss of general warranties and the right to pre-litigation defense
(1) Principle: Procedural creditors may not sue the general guarantor separately, and substantive creditors may not first execute the property of the general guarantor
(2) Exceptions:
1) The debtor is unaccounted for and has no property for execution
2) The court has accepted the debtor's bankruptcy
3) The creditor has evidence that the debtor's property is insufficient to perform all the debts or has lost the ability to perform the debts
4) The guarantor waives the pre-litigation defense in writing
3. Joint and several guarantee: The guarantee contract stipulates joint and several liability guarantee
(1) If the debtor fails to perform its obligations as they fall due or in the event of an agreement between the parties, the creditor may request the debtor to perform its obligations, or it may request the guarantor to bear the guarantee liability within the scope of the guarantee
Test Centre 113: Guaranteed Range
Principal claims and interest, liquidated damages, damages, realization costs, and agreements
Test Centre 114: Guarantee Period
1. During the exclusion period, the suspension interruption extension does not occur
2. Guarantee period: 6 months from the date of expiration of the performance period of the obligor's self-obligation, the agreement is earlier than the performance period or the expiration of the main debt performance period at the same time, it is deemed that there is no agreement
3. The performance period of the main debt is not agreed on the performance period, and it is calculated from the date of expiration of the grace period
Test Centre 115: Waiver of Liability
1. General guarantee: the creditor does not claim against the guarantor during the guarantee period, litigation or arbitration against the debtor, no longer bears 2, joint and several guarantee: not during the guarantee period, claims against the guarantor, and no longer bears
Test Centre 116: Limitation Period for Guaranteed Debts (694)
1. General guarantee: If the creditor refuses to assume the guarantee liability before the expiration of the guarantee period, sues or arbitrates the debtor or the guarantor, the limitation period for the guarantee debt lawsuit shall be calculated from the date on which the guarantor's right to refuse to bear the guarantee liability is extinguished
2. Joint and several guarantee: Before the expiration of the guarantee period, the limitation period for calculating the guarantee debt is calculated from the date on which the guarantor is requested to bear the guarantee liability
Exam Point 117: Slave Attributes guaranteed
1. Change of the content of the main contract
1. Effect of the main contract change on the guarantor:
(1) If the creditor and the debtor change the content of the main contract without the written consent of the guarantor and negotiate to reduce the debt, the guarantor shall bear the guarantee liability for the debt after the change; if the debt is aggravated, the guarantor shall not bear the guarantee liability for the aggravated part;
(2) The period of performance of the main contract is changed, without written consent, and the guarantee period is not affected
2. Assignment of creditor's rights
1. The creditor transfers all or part of it, fails to notify the guarantor, and the transfer does not have effect on the guarantor;
2. It is agreed to prohibit the assignment of creditor's rights, and no longer bear the guarantee liability without written consent
Assignment of obligations (double consent)
1. The creditor is allowed to transfer all or part of the claim without the written consent of the guarantor, the guarantor shall no longer bear the claim without its consent, unless otherwise agreed,
2. The third party joins the debt and the guarantee liability is not affected
Test Centre 118: Mutual Assurance (Internal and External)
1. Joint and several joint guarantee: two or more guarantees for the same debt, the guarantee share borne in accordance with the contract, the no agreed share, the creditor can request any one guarantor to bear within the scope of the guarantee;
2. When recovering, first bear the corresponding share to the debtor and other guarantors of the insufficient part,
(1) Agreed share: internal sharing according to the agreed proportion
(2) There is no agreed share: average share
Test Centre 119: Guarantor's Rights
1. Right of recourse: after assuming responsibility, the right to recover from the debtor, enjoy the creditor's rights to the debtor, and shall not harm the interests of the creditor
2. Right of defense: The guarantor may claim the debtor's defense against the creditor, the debtor abandons the defense, and the guarantor still has the right to defend
3. Right of set-off and right of avoidance: If the debtor has the right of set-off or avoidance of the creditor, the guarantor may refuse to bear the guarantee liability within the corresponding scope
Topic 23 Lease Contracts
Test Centre 120: Form of Lease Contract
More than 6 months, shall be in writing, not in writing, can not determine the lease term, is regarded as irregular
Test Centre 121: Risk Burden on Leased Property (Ownership)
1. Due to the non-attributable reasons of the lessee, the damage and loss, the reduction or non-payment of rent may be requested
2. The lessee cannot achieve the purpose of the contract due to the damage and loss of the leased property, and the lessee can cancel it
Test Centre 122: Obligations of Lessors and Lessees
1. Obligations of the lessor
1. Rentable obligation: deliver the leased property in accordance with the agreement, the lease period, the maintenance, the leased property conforms to the agreed purpose
2. Maintenance obligation:
(1) Maintenance obligation of the lessor: The lessor shall perform the maintenance obligation of the leased property, unless otherwise agreed by the parties.
(2) The lessor's performance of maintenance obligations
1) The lessee may request the lessor to repair the leased property within a reasonable period of time when the leased property needs to be repaired
2) The lessor fails to perform its obligations, repairs itself, and the lessor bears the cost
3) If the maintenance of the leased property affects the use of the lessee, the rent shall be reduced or the lease period shall be extended
4) If the leased property needs to be repaired due to the fault of the lessee, the lessor shall not bear the liability in the preceding paragraph
3. Warranty liability for defects of leased property: The leased property endangers person or health, and even if the contract is clearly known to be of unqualified quality, the lessee can still cancel it at any time
4. Guarantee for defective rights
(1) The tenant cannot use or benefit from the claim of rights by a third party, and may request a reduction or non-payment of rent
(2) The third party claims rights and the lessee shall notify the lessor in a timely manner
2. Obligations of the lessee
1. Fair use:
(1) Obligation of the lessee to use it properly: use it according to the agreement, no contract or the agreement is unclear, it is still uncertain according to Article 510, and it is used according to the nature
(2) Normal loss liability: use in accordance with the agreement or nature, resulting in the loss of the leased property, do not bear the liability for compensation
(3) Liability for failure to use the leased property in accordance with the agreement: Failure to use the leased property in accordance with the agreement or in accordance with the nature, resulting in loss of the leased property, fundamental breach of contract, the lessor may rescind the contract and claim compensation for the loss
2. Proper storage: it should be properly kept, damage and loss caused by improper storage, and compensation liability
3. Inaction
(1) Prohibition of addition: may be improved or added with consent, improved or added without consent, may be requested, restitution or compensation for losses
(2) Sublease is prohibited
1) Sublease: with consent, the lease contract can be subleased, the lease contract continues to be valid, the third party causes losses, and the lessee compensates; without consent, sublease, fundamental breach of contract, the contract can be terminated.
2) The sublease period exceeds the remaining period: with consent, the sublease period exceeds the remaining lease period, the excess part, there is no legal binding force on the lessor, and otherwise agreed.
3) Lessor's objection period: The lessor knows or should know about subleasing, does not raise an objection within 6 months, deems, and agrees
(3) Payment of rent:
1) Payment period of rent: The lessee shall pay the rent according to the agreed period, if there is no agreement, the lease period is less than 1 year, the lease period is less than 1 year, the lease period is more than 1 year, and the remaining less than 1 year is paid at the end of the lease period.
2) Liability for failure to pay rent as agreed: no justifiable reason, failure or delay in payment, reminder to pay within a reasonable period of time, overdue non-payment, can be discharged
(4) Obligation to return: At the expiration of the lease period, the leased property should be returned, and the leased property that should be returned should conform to the state after use in accordance with the agreement or nature
Test Centre 123: Tenant's Rights
1. Statutory right of rescission: The leased property cannot be used due to the reasons of the lessee and can be terminated
(The leased property is sealed and seized, the ownership of the leased property is disputed, and the leased property violates the mandatory provisions on the validity of the conditions of use in laws and administrative regulations)
2. The lease is not broken for sale: The tenant shall change the property rights in accordance with the lease contract, the period of possession, and the validity of the lease contract shall not be affected
3. Right of first refusal
(1) The right of first refusal of the house: the lessor sells, shall be notified within a reasonable period of time before the sale, under the same conditions, the lessee has the right of first refusal, except for the share of co-ownership and close relatives; after the performance of the notification obligation, within 15 days, the right of first refusal is expressly expressed, deemed or waived
(2) Waiver of the right of first refusal: The lessor shall notify the lessee 5 days before the auction of the house, and shall not participate in the auction and shall be deemed to have given up
(3) Remedies after the lessee's right of pre-emption has been violated: failure to notify the lessee, obstruction of the right of pre-emption, possibility to claim compensation liability, and the validity of the contract concluded between the lessor and a third party shall not be affected
4. The right to renew the lease
(1) The right to continue the lease of the co-residence and the operator: the lessee who dies during the lease period, the person who co-lived together or the co-operator before his death, can lease the house in accordance with the original lease contract
5. Preferential leasehold:
(1) Indefinite lease contract and preferential lease right: the lease period expires, the lessee continues to use, no objection is raised, the contract continues to be valid, and the lease term is indefinite. At the expiration of the lease term, the lessee has the same conditions and the right of first refusal
Test Centre 124: Sublease
1. Sublease with the consent of the lessor (legal sublease)
(1) The lessor shall not collect rent from the sub-lessee, the principle of relativity of the contract, and the legal validity
(2) Overcharging rent does not constitute unjust enrichment (there is no legal basis, one party profits, one party suffers, and there is a causal relationship between benefit and damage)
(3) Sub-lessee relief: legal sublease, rent arrears of the lessee, sub-lessee can pay on behalf of the sub-lessee, rent and liquidated damages, discount the rent of the sub-lessee, excess of the rent, recover from the lessee
(4) The lessee dismantles the lessor's relief without authorization
1) Directly sue the sub-lessee: tort liability, right of restitution in rem, alternative
2) Suing the lessee: liability for breach of contract, restitution of the right to claim in rem, choice of choice, liability after the lessee is liable, based on legal validity, liability for breach of contract
2. Sublease without the consent of the lessor (illegal sublease or unauthorized sublease)
(1) The sublease contract is invalid, the sub-lessee vacates the house after the time limit, and the lessor's remedy: request the sub-lessee to pay the occupancy royalties (due to the termination or invalidity of the lease contract, the sub-lessee overdue vacates the house, unjust enrichment)
(2) Remedies for the rights of the lessee after the termination of the lease contract: legal and valid contract, liability for breach of contract
(3) The lessor claims that the sublease contract is invalid and the lessee is relieved: the lessee is held liable for contractual negligence
(4) Limitation period for exercising rights: Self-knowledge or should have known the reason for subleasing, 6 months, and no objection is deemed to be consent
Test Centre 125: Circumstances and Handling of Invalid Lease Contracts
1. Situation
(1) Illegal building lease contract (without obtaining planning permission for construction projects, temporary construction without approval)
(2) The sublease period exceeds the remaining lease term of the lessee contract (the excess part is invalid)
(3) A sublease contract without the consent of the lessor and the objection of the lessor
2. Handling: unsolicited payment of rent, based on unjust enrichment, requestable possession of royalties (with reference to the agreed rent standard), and the other party may request to bear the liability for contractual negligence
Test centre 126: rent per room
1. Validity of the contract: all valid
2. Ranking: Legal possession > filing and registration> the contract is formed first
3. Handling: For other tenants who have not fulfilled, the purpose of the contract cannot be realized, the contract is terminated, the contract is liable for breach of contract, and the loss is compensated
Test Centre 127: Decoration or Expansion
1. Decoration and decoration: with the consent of the lessor, it can improve or add facilities, and without the consent of the lessor, it can request restoration or compensation for losses
2. Expansion
(1) Without the consent of the lessor: decoration or expansion costs, burden on the lessee, request for restitution or compensation for losses, court support
(2) With the consent of the lessor: the cost is not agreed, the legal construction formalities are handled - the lessor bears, the legal construction formalities are not handled - the two parties are shared according to fault
Test Centre 128: Indefinite Lease Contract
(1) Lease period of more than 6 months: it should be written, not written, the lease term cannot be determined, and it is deemed to be irregular
(2) The lease term is not agreed or the agreement is unclear, it is still uncertain according to Article 510 (consultation), it is deemed to be irregular, it can be terminated at any time, and the other party should be notified before a reasonable period of time
(3) The lease term expires, continues to be used, has no objections, continues to be valid, and the lease term is irregular
2. Exercise of rights: both parties enjoy, no compensation is required, the lessor exercises the right in advance, and the lessee does not use it
Topic 24 Financial Lease Contracts
1. Delivery: In the sale and purchase contract concluded by the lessor according to the lessee's choice of seller and leased property, the seller shall deliver the subject matter to the lessee in accordance with the agreement, and the lessee shall enjoy the rights of the buyer related to the subject matter of the acquisition.
(1) The lessee may refuse to receive the leased property delivered to it by the seller in any of the following circumstances if the seller breaches its obligation to deliver the subject matter to the lessee:
1) The leased property is seriously inconsistent with the agreement;
2) The leased property is not delivered in accordance with the agreement, and it has not been delivered within a reasonable period of time after being reminded by the lessee or lessor.
3) If the lessee refuses to accept the leased property, it shall promptly notify the lessor.
2. Defects in the quality of the leased property (the seller's performance does not conform to the agreement)
(1) Lessee claim: The lessor, seller and lessee may agree that if the seller does not perform its obligations under the sale contract, the lessee shall exercise the right to make a claim. If the lessee exercises the right to claim, the lessor shall assist.
(2) The lessor is not responsible: if the leased property does not conform to the agreement or does not meet the purpose of use, the lessor shall not be liable. However, the lessee relies on the lessor's skills to determine the leased property or the lessor intervenes in the selection of the leased property.
(3) Maintenance obligation of the lessee: The lessee shall properly keep and use the leased property. The lessee shall perform the maintenance obligation during the period of possession of the leased property. The lessor is not obligated to repair.
(4) Rent: The lessee exercises its right to claim against the seller without affecting its obligation to pay rent. However, if the lessee relies on the lessor's skills to determine the leased property or the lessor intervenes in the selection of the leased property, the lessee may request a corresponding rent reduction.
3. Risk burden: If the leased property is damaged or lost during the period when the lessee is in possession of the leased property, the lessor has the right to request the lessee to continue to pay the rent, unless otherwise provided by law or otherwise agreed by the parties.
4. Tort liability: If the leased property causes personal injury or property loss to a third party during the period when the lessee is in possession of the leased property, the lessor shall not be liable
5. Ownership of leased property:
(1) The lessor and the lessee may agree on the ownership of the leased property at the end of the lease period. If there is no agreement or unclear agreement on the ownership of the leased property, and it is still uncertain according to the provisions of 510 of this Law, the ownership of the leased property shall belong to the lessor.
(2) If the parties agree that the leased property shall belong to the lessee at the end of the lease period, and the lessee has paid most of the rent, but is unable to pay the remaining rent, and the lessor therefore terminates the contract to recover the leased property, the value of the leased property recovered exceeds the rent owed by the lessee and other expenses, and the lessee may request partial return.
(3) If the parties agree that the leased property shall belong to the lessor at the end of the lease period, and the lessee cannot return the leased property due to damage, loss, attachment or mixing of the leased property, the lessor has the right to request the lessee to give reasonable compensation.
Topic 25 Factoring Contracts
Test Centre 130: Factoring Contracts
1. Meaning: creditor of accounts receivable, existing or future, accounts receivable, transfer to factor, factor to provide (financial integration, accounts receivable management or collection, accounts receivable debtor payment guarantee), etc., service contract
2. Contents: The content of the factoring contract generally includes the type of business, service scope, service period, basic transaction contract, accounts receivable information, transfer price, service remuneration and its payment method clauses.
3. Nature: double service, famous, paid, sincere, essential
4. Fictitious treatment: creditors and debtors of accounts receivable, fictitious accounts receivable as the object of assignment, and the factoring contract concluded with the factor, the debtor of the accounts receivable, shall not rely on the reason that the debtor of the accounts receivable does not exist, against the factor, the factor knows that the fictitious is not the exception
5. Notification Obligation:
(1) Where the factor issues a notice of assignment of the receivable to the debtor of the receivable, it shall indicate the identity of the factor and attach the necessary certificates
(2) After the debtor of the accounts receivable receives the notice, the creditor of the accounts receivable and the debtor negotiate to change or terminate the underlying transaction contract without legitimate reasons, which adversely affects the factor, it will not be effective against the factor
6. Type
(1) Factoring with recourse: The parties agree that they have the right of recourse and can claim the return of the principal and interest of factoring financing or repurchase the claim of the receivables from the accounts receivable creditor, or they can claim the accounts receivable claim from the debtor of the accounts receivable, and the factor can claim the claim of the accounts receivable from the debtor of the account receivable, and there is a surplus after deducting the principal and interest of the factoring financing and related expenses. It should be returned to the receivables creditors
(2) No recourse factoring: The parties agree that there is no recourse, that the accounts receivable debtor should claim the claim of the receivable, and that the factor obtains the part that exceeds the principal and interest of the factoring financing and related expenses, and does not need to return it to the creditor of the receivable
7. One debt and multiple insurance: the same accounts receivable claim concludes multiple factoring contracts, has been registered before the unregistered, all are registered in accordance with the order of registration, and the factor specified in the notice of the debtor who has not registered first arrives at the accounts receivable is preferred, and neither registered nor notified is proportional
Topic 26 Construction Contracts
(Exception to the principle of relativity of contracts)
Test Centre 131: Prohibited Acts in Construction Contracts
1. Circumstances: It is forbidden for the contractor to dismember the contract, prohibit the contractor from subcontracting all of the contract and dismember the whole package after dismemberment, prohibit the contractor from subcontracting to the unit that does not have the qualification conditions, and prohibit the subcontracting unit from subcontracting again
2. Legal consequences: In order to ensure the quality of the project, (violation of qualification management, bidding regulations) is determined to be mandatory for validity, and the contract is invalid
3. Note:
(1) The construction of the main structure must be completed by the contractor, and the main structure must be subcontracted to a third party with the consent of the contractor, and it is also invalid;
(2) The contractor subcontracts to a third party, and the contractor bears joint and several liability to the contractor for the work results of the third party and to the contractor;
(3) The contractor illegally subcontracts or illegally subcontracts, or is not qualified to borrow the name of a qualified enterprise, the construction contract signed with others is invalid, and the court may confiscate the illegal gains obtained by the parties;
(4) Subcontracting requires the consent of the contractor
Test Centre 132: Situations and Treatment of Invalid Construction Contracts for Construction Projects
1. Yin-Yang contract (exception to the theory of false expression of intent): for the same construction project, a separate construction project construction contract, inconsistent with the content of the winning contract on the record, and the winning contract on the record is used as the basis for calculating the project price
2. Contractor exceeds qualification processing: the contractor exceeds the qualification level, concludes the construction contract of the construction project, obtains the qualification before completion, requests that the contract is invalid, and will not be supported
3. No construction project planning permit has been obtained
(1) Ability to handle the handling of approval and refusal: when signing the construction contract, not obtaining the construction project planning permission, being able to handle the approval but refusing to handle it, on the grounds of failure to handle the trial formalities, abuse of rights, request confirmation of invalidity, and the court does not support it
(2) Acquisition before litigation: when signing the construction contract, without obtaining planning permission for the construction project, requesting the court to confirm the invalidity of the contract, supported by the court, and obtained by the contractor before the lawsuit, except
4. Unqualified but qualified quality: Several contracts concluded by the parties for the same construction project are invalid, but the quality of the project is qualified, and the parties request to refer to the actual performance of the contract settlement price, which should be supported; the actual performance is difficult to determine, the request is referred to the final signing of the contract settlement, and the court supports it
5. Invalidity
(1) The tenderer and the successful bidder, outside the winning contract, sign a contract for the purchase of the contracted real estate that is significantly higher than the market price, reduce the project price in disguise, one party deviates from the essence of the winning contract with the contract, requests confirmation of invalidity, and the court supports it
(2) The bidder and the successful bidder, outside the winning contract, sign a contract for the construction of housing facilities without compensation, reduce the project price in disguise, one party deviates from the essence of the winning contract by means of the contract, requests confirmation of invalidity, and the court supports it
(3) The bidder and the successful bidder, outside the winning contract, sign a contract for donating property to the construction unit, reduce the project price in disguise, one party deviates from the essence of the winning contract by the contract, requests confirmation of invalidity, and the court supports it
6. Affiliation relationship: units or individuals lacking qualifications, borrowing the name of a qualified construction enterprise, signing a construction project contract, the contractor requesting the lender and the borrower to fail to meet the quality of the project, etc., and caused losses due to lending qualifications, and bear joint and several liability
Test Centre 133: Advance and Litigation Status in Construction Contracts
1. Subrogation lawsuit of the actual contractor: The actual contractor shall take the contractor as the defendant, the court shall add, the subcontractor or the illegal subcontractor shall be the third party, and after ascertaining the amount owed by the contractor to the subcontractor or the illegal subcontractor, the judgment of the contractor shall be liable to the actual contractor within the scope of the arrears
Test Centre 134: Priority reimbursement for construction project prices:
1. The contractor fails to pay the price as agreed, urges the payment within a reasonable period of time, fails to pay after the deadline, and may agree to discount the price or request the court to auction the price of the project or construction project in priority
1. Decoration and decoration project: the contractor of the decoration and decoration project, the request for the project price, the discount or auction for the decoration and decoration project, the priority of the price, the court should support it, and the contractor of the decoration project is not the owner of the building, except
2. The quality of the project that has not yet been completed is qualified: the quality of the unfinished project is qualified, the contractor requests the project price, the part of the project it undertakes is discounted or auctioned, the priority is reimbursed, and the court supports it
3. The scope of priority compensation for construction projects: only support the project itself, interest on overdue payments, liquidated damages, damages, and no right of priority
4. Period of priority to receive reimbursement: The self-contractor shall pay and have the right of priority to be reimbursed within 6 months from the date of payment and project price
5. Invalidity of the agreement to waive the right of priority compensation: the contract issuer and the contractor agree, waive or restrict, the right of priority to reimbursement of the construction project, harm the interests of the workers, and the agreement is invalid (malicious collusion to harm the interests of the workers)
6. Priority guarantee and other claims for construction projects: real estate dispute cases, construction contractors, preferential repayment rights over mortgage rights, and other claims
7. Priority right to reimbursement and consumers: the payment of all or most of the purchase price, the contractor's project price is paid first, and the buyer shall not be opposed
Topic XXVII Entrustment Contracts
Test Centre 135: Indirect Agent
I. Nominal Indirect Agent (925): A contract concluded between the trustee in his own name and within the scope of the authority of the principal, and the third party knows of the agency relationship between the trustee and the principal at the time of conclusion of the contract, the contract directly binds the principal and the third party; however, unless there is evidence that the contract only binds the trustee and the third party.
2. Anonymous indirect agents
1. If the trustee concludes a contract with a third party in his own name and the third party does not know that there is an agency relationship, and the trustee does not perform his obligations to the trustor due to the reasons of the third party, the trustee shall disclose the third party to the client, so the trustor can exercise the trustee's rights to the third party. However, the third party will not conclude the contract if it is known that the trustee will not conclude the contract when concluding the contract with the trustee.
2. If the trustee does not perform its obligations to the third party due to the reasons of the trustor, the trustee shall disclose the trustor to the third party, so the third party may choose the trustee or the trustor as the counterpart to claim its rights, but the third party shall not change the selected counterpart.
3. Where the client exercises the trustee's rights over a third party, the third party may claim its defense against the trustee from the client. Where a third party selects the client as its counterpart, the settlor may assert its defense against the trustee and the trustee's defense against the third party.
Test Centre 136: Arbitrary right to terminate the entrustment contract
1. The client or trustee may terminate the entrustment contract at any time.
2. Where the other party suffers losses due to the rescission of the contract, in addition to the reasons for which the party cannot be attributed,
(1) The party terminating the gratuitous entrustment contract shall compensate for the direct losses caused by the improper time of termination
(2) The party terminating the contract of paid entrustment shall compensate the other party for direct losses and benefits that can be obtained
Topic 28 Property Service Contracts
Test Centre 137: Property Service Contracts
1. Meaning: The property service personnel provide the owner with property services such as buildings and their ancillary facilities (maintenance, environmental sanitation and order management) in the property service area, and the owner pays the property fee. Property service providers include property service enterprises and other property managers
2. Content
1. The content of the property service contract generally includes service matters, service quality, service fee standards and collection methods, the use of maintenance funds, the management and use of service premises, service period, service handover and other terms.
2. The service commitment of the property service provider in favor of the owner is an integral part of the property service contract.
3. The nature of the property service contract: double service, named, paid, promised, and essential contract.
4. Method of conclusion: All are legally binding on the owner
(1) The preliminary property service contract concluded between the construction unit and the property service provider in accordance with the law
(2) The property service contract concluded between the owners' committee and the property service provider selected by the owners' general meeting according to law
5. Termination of the previous property service contract: Before the expiration of the service period stipulated in the previous property service contract concluded between the construction unit and the property service provider in accordance with the law, the property service contract concluded by the owners' committee or the owner and the new property service provider takes effect, the previous property service contract is terminated.
6. Obligations of property service providers.
(1) Perform in person
(1) Where the property service provider entrusts some special service matters in the property service area to a professional service organization or a third party, it shall be responsible to the owner for the special service matters in that part (without the consent of the owner)
(2) The property service provider shall not entrust all the property services it should provide to a third party, or entrust all the property services to a third party after the property service is dismembered. (Fundamental default)
(2) Proper and reasonable performance
(1) The property service provider shall, in accordance with the agreement and the nature of the use of the property, properly repair, maintain, clean, green and manage the common part of the owner in the property service area, maintain the basic order in the property service area, and take reasonable measures to protect the personal and property safety of the owner.
(2) For violations of relevant laws and regulations on public security, environmental protection and other laws and regulations in the property service area, the property service provider shall promptly take reasonable measures to stop, report to the relevant administrative departments and assist in handling.
(3) Public report: The property service provider shall regularly disclose the service matters, responsible personnel, quality requirements, charging items, charging standards, performance, as well as the use of maintenance funds, the operation and income of the owner's common part, etc., in a reasonable manner, and report to the owners' general meeting and the owners' committee
(4) Post-contractual obligations (principle of good faith)
(1) If the property service contract is terminated, the original property service provider shall withdraw from the property service area within the agreed period or reasonable period, return the property service room, related facilities, relevant materials necessary for property service to the owners' committee, decide to manage itself or its designated person, cooperate with the new property service provider to do a good job in handover work, and truthfully inform the use and management status of the property. Where the original property service provider violates the provisions of the preceding paragraph, it shall not request the owner to pay the property fee after the termination of the property service contract; if the owner suffers losses, it shall compensate for the losses.
(2) After the termination of the property service contract, before the new property service provider selected by the owner or the owners' general meeting or the owner who decides to manage itself takes over, the original property service provider shall continue to deal with the property service matters and may request the owner to pay the property fee for the period.
7. Obligations of the owner
(1) Payment of property fees
(1) The owner shall pay the property fee to the property service provider in accordance with the agreement. Where the property service provider has provided services in accordance with the agreement and relevant provisions, the owner shall not refuse to pay the property fee on the grounds that it has not accepted or does not need to accept the relevant property service.
(2) If the owner violates the agreement and fails to pay the property fee within the time limit, the property service provider reminds the property service provider to pay within a reasonable period of time; if the property service personnel still fails to pay within the time limit, the property service personnel may sue or arbitrate
(2) Obligation to inform
(1) If the owner decorates and decorates the house, he shall inform the property service provider in advance, abide by the reasonable precautions prompted by the property service provider, and cooperate with him to carry out the necessary on-site inspection.
(2) Where the owner transfers or leases the exclusive part of the property, establishes the right of residence or changes the use of the common part in accordance with the law, he shall promptly inform the property service provider of the relevant circumstances.
8. Cancellation
(1) Where the owners jointly decide to dismiss the property service provider in accordance with legal procedures, the property service contract may be terminated. Where a decision is made to dismiss the employee, the property service provider shall be notified in writing 60 days in advance, unless the contract otherwise agrees on the notice period.
(2) Where the termination of the contract in accordance with the provisions of the preceding paragraph causes losses to the property service provider, the owner shall compensate for the losses, except for the reasons that cannot be attributed to the owner.
9. Renewal
(1) Before the expiration of the property service period, if the owners jointly decide to renew the employment in accordance with the law, they shall renew the property service contract with the original property service provider before the expiration of the contract period.
(2) If the property service provider does not agree to renew the employment before the expiration of the property service period, it shall notify the owner or the owners' committee in writing 90 days before the expiration of the contract period, unless the contract otherwise agrees on the notice period
10. Irregular property service contracts
(1) After the expiration of the property service period, the owner has not made a decision to renew or hire another property service provider in accordance with the law, and the property service provider continues to provide property services, the original property service contract continues to be valid, but the service period is irregular.
(2) The parties may terminate the indefinite property service contract at any time, but shall notify the other party in writing 60 days in advance.
Topic XXIX Partnership Contracts
Test Centre 138: Partnership Contract
1. Meaning: A partnership contract is an agreement concluded by two or more partners to share benefits and share risks for common business purposes.
2. The essence of partnership: joint investment, joint operation, shared income, shared risk
3. Capital contribution obligation: The partners shall perform the capital contribution obligation in accordance with the agreed method, amount and payment period.
4. Partnership property: the partners' capital contribution, income obtained according to law and other property due to partnership affairs
5. Division of property: Before the termination of the partnership contract, the partners shall not request the division of the partnership property.
6. Execution of partnership affairs
(1) Partnership affairs shall be jointly executed by all partners. Where a partner makes a decision on partnership affairs, unless otherwise agreed in the partnership contract, it shall be unanimously agreed by all partners.
(2) In accordance with the provisions of the partnership contract or the decision of all partners, one or more partners may be entrusted to perform partnership affairs; other partners shall no longer perform partnership affairs, but shall have the right to supervise the implementation.
(3) Where the partners perform the affairs of the partnership separately, the executive partners may raise objections to the affairs performed by the other partners; after raising objections, the other partners shall suspend the execution of the affairs.
(4) The partners shall not request remuneration for the execution of partnership affairs, unless otherwise agreed in the partnership contract.
7. Profit and loss sharing (972): Handled in accordance with the provisions of the partnership contract; if the partnership contract is not agreed or the agreement is not clear, it shall be decided by the partners through consultation; if the negotiation fails, the partners shall distribute and share according to the proportion of paid-in capital contribution; if the proportion of capital contribution cannot be determined, the partners shall distribute and share it equally
8. Debt assumption: The partners bear joint and several liability for the partnership debts. If the repayment of partnership debts exceeds its share, it has the right to recover from other partners.
9. Transfer of property shares: Unless otherwise agreed in the partnership contract, if a partner transfers all or part of his property share to a person other than the partner, it shall be subject to the unanimous consent of the other partners.
10. Prohibition of subrogation exercise: The creditors of the partners shall not subrogate the rights enjoyed by the personal partnership contract, except for the rights enjoyed by the partners to claim the distribution of benefits.
11. Indefinite partnership contract
(1) If the partners have not agreed on the term of the partnership or the agreement is not clear, and it is still uncertain according to the provisions of Article 510 of this Law (supplementary agreements, trading habits, and relevant provisions), it shall be regarded as an indefinite partnership.
(2) When the term of the partnership expires and the partners continue to perform the partnership affairs, and the other partners do not raise objections, the original partnership contract shall continue to be valid, but the term of the partnership shall be indefinite.
(3) The partners may terminate the indefinite partnership contract at any time, but shall notify the other partners before a reasonable period of time.
12. Termination: If the partner dies, loses civil capacity or is terminated, the partnership contract shall be terminated; unless the partnership contract otherwise agrees or is not suitable for termination according to the nature of the partnership affairs.
13. Distribution of residual property: After the termination of the partnership contract, if there is a surplus of the partnership property after paying the expenses incurred as a result of the termination and paying off the partnership debts, it shall be distributed in accordance with the provisions of Article 972 of this Law.
Part V: Personality Rights
Topic 30 General personality rights and specific personality rights
Exam Centre 139: General Personality Rights (Freedom, Dignity, Independence, Equality)
Unlawful detention, etc., deprivation of restriction of liberty, unlawful search of another person's body, the right of the victim to claim civil liability
Test Centre 140: Eight specific types of personality rights
First, three types of material personality rights
1. Right to life: exclusion of suicide, assisted suicide, and violation of the right to life
2. Right to the body: limbs, organs, and tissues are intact
3. Right to health: normal operation and play of physiological or psychological functions (functions).
(1) Legal rescue obligation: natural persons, (right to life, body, health), organizations or individuals that have been infringed or are in distress, and legal assistance obligations shall be rescued in a timely manner
(2) Human tissue donation
1) Persons with full capacity for civil conduct, the right to make their own decisions (in writing or in the form of medical advice), free donations, any organization of individuals, must not, (coercion, deception, inducement).
2) A natural person with full legal capacity, who has not expressed disagreement before his death, (spouse, adult children, parents), joint decision (in writing), or making a will
(3) Organ trading: Prohibited, any form, trading, buying and selling is invalid
(4) Clinical trials: the competent department + ethics committee agrees, informs and obtains written consent, no fee
(5) Medical and scientific research activities: (human genes, human embryos), follow laws, administrative regulations and national regulations, shall not endanger the human body, shall not violate ethics and morality, and shall not harm the public interest
(6) Sexual harassment: against the will of others, sexual harassment, the victim has the right to request, the perpetrator bears civil liability. (Organs, enterprises, schools, etc.) units, (shall adopt measures such as prevention, acceptance of complaints, investigation and handling) to prevent and stop, use power and subordinate relationships, and carry out sexual harassment
Ii. Five types of mental personality rights
1. Right to name
(1) Meaning: The right of natural persons to decide, use and change their names in accordance with regulations
1) Civil Code 1017: Provisions on the protection of well-known names (pen names, screen names, translated names, trade names, abbreviations of names), references, name rights and name rights
(2) Subject: The unique natural person and the legal person unincorporated organization are the right to the name
(3) Contents: Parents naming is not a denial of the right to a name, but an act of representation by parents in the implementation of parental rights
(4) Forms of infringement: interference, misappropriation (unauthorized, seeking improper benefits, unauthorized use), counterfeiting (impersonation). Disclosure of real names, past names is not a violation of the right to a name
(5) The surname of a natural person: it shall follow the father's surname or the mother's surname, exceptions: the selection of blood relatives of the direct elderly, the family name of the dependent outside the legal dependent, the ethnic minority following the national cultural customs, not violating public order and good customs, and other legitimate reasons
2. Portrait rights
(1) Subject: unique to natural persons
(2) Content: the right to reproduce the overall image and the right to use the portrait
(3) The right to use the portrait
1) The terms of the portrait license contract are disputed and should be interpreted in favor of the portrait rights holder.
2) The period of permission to use the portrait is not agreed or the agreement is not clear, either party has the right to terminate at any time, and should notify the other party before a reasonable period of time; the agreement is clear, the portrait rights holder has a legitimate reason, can be terminated, notify the other party before a reasonable period of time, cause losses, except for the portrait rights holder that cannot be attributed, and compensate.
3) Permission to use the name, refer to the provisions of the portrait license, protect the voice, and protect the portrait with reference
(4) Form of infringement:
1) Vilifying and defacing, forging, or using technical means to forge and infringe on the portrait rights of others;
2) Without consent, the portrait shall not be made, used or disclosed, except as otherwise provided by law;
3) Without the consent of the portrait rights holder, the portrait work rights holder shall not use or disclose the portrait of the portrait rights holder by means of publication, reproduction, distribution, rental, exhibition, etc
(5) Fair use of portrait rights: The following acts may be carried out without consent:
1) Use public portraits for personal study, art appreciation, classroom education, scientific research, and within the scope necessary;
2) for news reporting, unavoidable;
3) To perform duties in accordance with law, state organs within the necessary scope;
4) To show a specific public environment, it is inevitable;
5) To safeguard the public interest or the legitimate rights and interests of portrait rights holders
3. The right to reputation
(1) Meaning: The right to reputation shall not be insulted or slandered by others. (Character, prestige, talent, credit)
(2) Subject: natural person, legal person
(3) Object: social evaluation (unspecified third-party evaluation)
1) Determination of infringement by the news media: for the public interest, the implementation of news reports or public opinion supervision, the impact on the reputation of others, not to bear the liability for infringement, (fabrication and distortion, others to provide seriously inaccurate content without reasonable review obligations, the use of insulting words), except
2) Determination of infringement of literature and works of art: the object of depiction of real people or specific people, containing insulting and defamatory content, infringing on the reputation of others, and the victim has the right to request civil liability in accordance with law
3) Determination of infringement by newspapers, periodicals, and online media: civil subjects, evidence, untruthful content of newspapers and periodicals online media, infringement of the right to reputation, and the right to request that the media promptly correct or delete them
4) Credit appraisals: Civil entities may lawfully inquire into their own credit appraisals, discover errors, have the right to raise objections and request correction or deletion, etc., credit appraisers shall promptly verify, promptly employ necessary measures if true, the relationship between civil entities and credit reporting establishments, and apply personal information protection provisions and other relevant provisions
5. Privacy
(1) Meaning: Private space, private activities, and private information that are peaceful in private life and do not want to be known by others
(2) Form of infringement: Unless otherwise provided by law or with the explicit consent of the right holder, no organization or individual may engage in the following acts:
1) Disturbing the tranquility of others' private lives,
2) Enter, shoot, peek into private spaces,
3) Filming, peeping, eavesdropping, and disclosing the private activities of others,
4) Shooting, peeping at other people's private parts,
5) Handle other people's private information, other ways
Test Centre 141: Protection of Personal Information
1. Meaning: The personal information of natural persons is protected by law.
(1) Recordability and recognizability (big data processing statistics, can not identify non-personal information)
(2) The provisions on privacy rights shall apply to the private information in personal information, and if there is no provision, the provisions on the protection of personal information shall apply
2. Reasonable use: The handling of personal information shall follow the principles of legality, legitimacy and necessity, shall not be excessively processed, and meet the following conditions:
(1) Obtain the consent of the natural person or his guardian, except as otherwise provided by laws or administrative regulations;
(2) Rules for the disclosure of the handling of information;
(3) Clearly indicate the purpose, method and scope of processing information;
(4) It does not violate the provisions of laws and administrative regulations and the agreements of both parties.
3. Right to know
(1) Natural persons may consult or copy their personal information from information processors in accordance with law; if they find that the information is erroneous, they have the right to raise objections and request necessary measures such as promptly obtaining corrections.
(2) Where a natural person discovers that an information processor has handled his personal information in violation of the provisions of laws or administrative regulations or the agreement of both parties, he has the right to request that the information processor delete it in a timely manner.
4. Exemption from liability 1036: Handling personal information, in any of the following circumstances, the actor does not bear civil liability:
(1) Acts reasonably committed within the scope of the consent of the natural person or his guardian;
(2) Reasonably handle information that the natural person has disclosed on its own initiative or that has already been lawfully disclosed, except where the natural person explicitly refuses or processes the information that infringes upon his or her major interests;
(3) Other acts reasonably carried out to safeguard the public interest or the lawful rights and interests of the natural person.
5. Obligations of the Collector and Controller (1038)
(1) Information processors shall not disclose or tamper with the personal information they collect or store; without the consent of natural persons, they shall not illegally provide their personal information to others, except where specific individuals cannot be identified after processing and cannot be restored.
(2) Information processors shall take technical measures and other necessary measures to ensure the security of the personal information they collect or store, and prevent information leakage, alteration, or loss; where personal information leakage, alteration, or loss occurs or is likely to occur, they shall promptly employ remedial measures, inform natural persons in accordance with provisions, and report to the relevant competent departments.
6. Confidentiality obligation: State organs, statutory bodies undertaking administrative functions and their staff, in the course of performing their duties, know and keep confidential, and must not disclose or illegally provide to others
Title VI Marriage and Family
Topic 31 Marriage and Family Relations
Exam Point 142: Marriages with Flawed Validity (Age of Marriage is a Sickness)
1. Revocable marriage: One party suffers from a serious illness, should truthfully inform the other party before registration, not inform, the other party may request revocation from the court, and raise it within one year from the date of knowing or should know the cause of revocation
Test Centre 143: Joint Debts of Husband and Wife
1. Debts incurred by expressions of common intent such as joint signatures or retroactive recognition, as well as the use of personal names for daily life needs during the marriage;
2. Except for the period of existence, in the name of the individual, beyond the needs of daily life, not belonging, used for common life, joint management, and expression based on the common intention of both parties
Test Centre 144: Confirmation or denial of paternity
Parent-child relationship, objection and justifiable reason, parents may sue to confirm or deny, adult children may sue for confirmation
Exam Centre 145: Divorce System
1. Cooling-off period for divorce by agreement: within 30 days from the date of receipt of the divorce application by the marriage registration authority, either party may withdraw the application; within 30 days after the expiration of the period, the two parties shall personally apply for the issuance of a divorce certificate, and if the application is not applied, it shall be deemed to be withdrawn
2. Statutory circumstances of litigation divorce:
(1) Bigamy cohabitation tyranny: litigation claims for divorce and claims for fault damages
(2) Gambling and drug use separated for 2 years
(3) The relationship is broken due to disappearance or birth disputes, and mediation is ineffective
(4) Where the court rules that divorce is not allowed, the parties have been separated for another year, and one of the parties proposes divorce again, it shall be granted
3. Dissolution of marriage: Divorce registration, judgment or mediation document takes effect
4. Relationship between parents and children after divorce
(1) The relationship between parents and children is not eliminated
(2) Parents still have the right and obligation to raise, educate and protect their children
(3) Under the age of 2, the mother's direct support is the principle; when the child has reached the age of 2, the agreement is not successful, and the court shall act according to the specific conditions of both parties and the principle of the most favorable child; and if he has reached the age of 8, his true wishes shall be respected
5. Economic compensation: one party has more obligations due to (raising children, caring for the elderly, assisting the other party), etc., has the right to request compensation from the other party, the other party should compensate, and the specific two parties agree, and the court will not make a judgment
Topic 32 Adoption Relations
Test Centre 146: Establishment of an Adoption Relationship
1. Adoptees: minors, orphans who have lost their parents, cannot find their birth parents, and have special difficulties in raising their biological parents
2. Guardian adoption restrictions: Guardians send orphans, should obtain the consent of the maintenance obligor, the obligor does not agree and the guardian is unwilling to continue the guardianship, and a guardian is determined separately according to law
3. Adopters
(1) Childless or with only one child
(2) Have the ability to raise, educate and protect
(3) There is no medical condition that a child should not be adopted
(4) There is no criminal record that is detrimental to the healthy growth of the adoptee
(5) Be at least 30 years old
4. Restrictions on the adoption of the opposite sex without a spouse: The age difference between the adopted children of the opposite sex and the adoption of children of the opposite sex without a spouse should be 40 years
5. Voluntary adoption and consent: Adoption by adopter and adoption by adopter shall be agreed by both parties, adoption of minors over 8 years of age, and consent of the adoptee shall be obtained
Title VII Succession
Exam Point 147: Subrogation
(1) If the children of the heirs die before the heirs, they shall be inherited by the blood relatives of the direct descendants of the children of the heirs.
(2) Where a brother or sister of the heir dies before the heir, the children of the deceased's brother or sister shall inherit the throne by subrogation.
3. Subrogated heirs can generally only inherit the share of the estate that the subrogated heirs have the right to inherit.
Test Centre 148: Testamentary Succession
1. Print the will: The printed will should have more than two witnesses present to witness. The testator and the witness shall sign each page of the will, indicating the year, month and day.
2. Video will: For a will made in the form of audio or video recording, two or more witnesses shall be present to testify. The testator and the witness shall record their names or likenesses, as well as the year, month, and day, in the audio or video recording.
3. Validity of the will: The testator may withdraw or change the will he or she has made. After the will is made, if the testator commits a civil juristic act contrary to the content of the will, it shall be deemed to be a withdrawal of the relevant contents of the will. There are several wills, and if the contents are contradictory, the last will and testament shall prevail.
Test Centre 149: Handling of Heritage
1. Estate administrator.
(1) Determination: After the inheritance begins, the executor of the will shall be the administrator of the estate; if there is no executor of the will, the heir shall promptly elect the administrator of the estate; if the heirs are not elected, the heirs shall jointly serve as the administrator of the estate; if there are no heirs or the heirs have given up the inheritance, the civil affairs department or the villagers' committee of the place of residence before the deceased's life shall serve as the administrator of the estate.
(2) Designation: Where there is a dispute over the determination of the estate administrator, the interested party may apply to the people's court for the appointment of the estate administrator.
(3) Duties: The administrator of the estate shall perform the following duties
(1) Clean up the estate and make a list of the estate;
(2) Report the inheritance to the heirs;
(3) take necessary measures to prevent the destruction of the heritage;
(4) dealing with the creditor's rights and debts of the deceased;
(5) Divide the estate in accordance with the will or in accordance with the provisions of the law;
(6) To carry out other necessary acts related to the administration of the estate.
(4) Liability: The administrator of the estate shall perform his duties in accordance with the law, and shall bear civil liability if the heirs, the bequeathed person or the creditor are damaged by intentional or gross negligence.
(5) Remuneration: The administrator of the estate may receive remuneration in accordance with the provisions of the law or in accordance with the agreement.
2. Notification Obligation:
(1) After the inheritance begins, the heirs who know that the heirs are dead shall promptly notify the other heirs and executors.
(2) If no one among the heirs knows of the death of the heir or knows of the death of the heir and cannot notify him, the residents' committee or villagers' committee of the unit or domicile where the heir lived before his death shall be responsible for notifying him.
3. Custody: Those who have a legacy shall properly keep the heritage, and no organization or individual may embezzle or compete for it.
4. OK
(1) Unless agreed upon, when dividing the property jointly owned by husband and wife, half of the jointly owned property shall first be divided into the possession of the spouses, and the rest shall be the inheritance of the heirs.
(2) Where the estate is in the common property of the family, the property of others shall be divided first when the estate is divided.
5. Fetal reserved share: When the inheritance is divided, the inheritance share of the fetus shall be retained. If the fetus is dead at the time of delivery, the retained share shall be handled in accordance with the legal inheritance.
6. The principle of division: The division of the estate should be conducive to production and living needs, and should not harm the utility of the heritage. Estates that are not suitable for division may be disposed of by means of discounting, appropriate compensation or co-ownership.
Title VIII Tort Liability
Topic 34 Basic Principles of Tort Liability
Test Centre 150: Contributory Infringement
1. Types of infringement by several people: joint harm, common danger, instigation and help, and unintentional contact with several people to infringe
2. Joint dangerous acts: two or more people commit dangerous acts, one or more people cause damage to others, the specific infringer can be determined, the infringer bears responsibility, cannot be determined, and is jointly and severally liable
3. There is no intention to contact several people for joint tortious liability
(1) Competition of causes: separately committed, causing the same damage, each act is sufficient, all damage, joint and several liability
(2) Combination of causal force: implemented separately, causing the same damage, being able to determine the size of the responsibility, each bearing the corresponding responsibility, difficult to determine, and bearing it equally
Test Centre 151: Disclaimer
1. Emergency avoidance: damage caused by emergency avoidance, persons who cause danger to bear, natural causes, do not bear civil liability, can be compensated, improper or exceed the necessary limits, and should bear appropriate civil liability
2. Negligence offset: the infringed party, the occurrence or expansion of the same damage, is at fault, and can be mitigated
3. Self-help behavior: legitimate rights and interests have been infringed, the situation is urgent and cannot be protected by state organs in time, it will be difficult to make up for the damage without immediate measures, within the necessary scope, reasonable measures, but should be immediately requested to state organs to deal with. Improper measures cause damage and bear tort liability
4, causal relationship: conditional relationship (necessarily caused), equivalent (usually caused)
Test Centre 152: Compensation for Moral Damage:
Infringement of personal rights and interests, intentional or gross negligence infringement of specific objects of personal significance, causing moral damage, the infringed person has the right to claim compensation for moral damages
1. Basis: In principle, only the lawsuit for infringement can be claimed, the lawsuit for breach of contract and causes the infringement of personality rights can also be claimed.
(1) Competition of claims: Where one party breaches the law, damages the personality rights of the other party and causes serious mental damage, and chooses to claim liability for breach of contract, it will not affect the request for moral damages
2. Scope of application (legal provisions, limited to 2 types):
(1) Violation of personal rights:
1) Infringement of spousal rights: in the case of divorce, the spouse's rights of the non-faulty party are violated, and moral damages can be claimed against the at faulty party
2) Parent-child rights are violated: Illegally causing the ward to leave the guardianship, the guardian can claim
(2) Intentional or gross negligence to infringe on specific objects of personal significance, causing serious mental damage
3. Subject of prosecution: In principle, the victim himself, the death due to infringement or the damage after death, the spouse's parents and children, and other close relatives
(1) The right to claim consolation payment for mental damage is a right to claim for conduct and cannot be transferred or inherited. However, if it is converted into property rights, it can be transferred or inherited according to law, and there are two main ways of transformation:
1. Commitment has been made, i.e. the indemnity obligor has undertaken in writing to give monetary compensation.
2. Has been sued, that is, the right holder of compensation has filed a lawsuit with the court;
Topic 35 Seven types of special subject responsibilities
Test Centre 153: Guardianship Responsibilities
1. Tort liability after entrusting guardianship: if the people are not limited to cause harm to others, the guardian entrusts the guardianship duties, the guardian bears the tort liability, the trustee is at fault, and the corresponding liability
Test Centre 154: Employment Responsibility
1. Employer employment responsibility:
(1) The employees of the employer, the performance of work tasks cause damage to others, the employer bears tort liability, after assuming responsibility, it may seek compensation from intentional or gross negligence
(2) During the period of labor dispatch, if the dispatched worker causes damage to others due to the performance of work tasks, the employing unit receiving the labor dispatch shall bear the tort liability; if the labor dispatch unit is at fault, it shall bear the corresponding liability.
2. Personal employment responsibility:
(1) The labor relationship between individuals, the party providing the labor service causes damage to others due to the labor service, the party receiving the labor service bears tort liability, and after assuming responsibility, it may seek compensation from intentional or gross negligence
(2) The party providing the labor service, the damage caused by the labor service, and the corresponding liability according to the fault of both parties
(3) After the third party's behavior causes damage to the party providing the labor service, has the right to bear tort liability to the third party, or requests to accept compensation from the labor party, or accepts the compensation of the labor party, the third party may recover compensation
Test Centre 155: Responsibilities of Network Service Providers
1. Network infringement liability (1194): Network users, network service providers, and network service providers who use the network to infringe on the rights and interests of others shall bear tort liability
2. Measures to be taken by network service providers (1195):
(1) Network users using the network to infringe, the right holder notifies the network service provider, (necessary measures such as deleting, blocking, disconnecting links, etc.), including prima facie evidence and the true identity of the right holder;
(2) After receiving the notice, the network user shall be promptly notified, and preliminary measures shall be taken, and if not taken, the damage shall be expanded, and joint and several liability shall be taken;
(3) The right holder shall notify the wrongful person, cause damage to the network user and the network service provider, and bear the tort liability.
3. Network service providers' transmission and notification obligations:
(1) After receiving the notice of forwarding, the network user may submit a declaration of non-infringement to the network service provider. The statement shall include prima facie evidence of the absence of infringement and the true identity information of the network user.
(2) After receiving a statement, the network service provider shall forward the statement to the right holder who issued the notice, and inform him that he may complain to the relevant departments or file a lawsuit with the people's court. Where a network service provider does not receive a notice that the right holder has made a complaint or filed a lawsuit within a reasonable period of time after the transfer statement reaches the right holder, it shall promptly terminate the measures it has taken.
4. Joint and several liability of network service providers: Where network service providers know or should know that network users are using their network services to infringe upon the civil rights and interests of others, and fail to take necessary measures, they bear joint and several liability with the network users.
Test Centre 156: Security Obligor's Liability (Properties with High-Altitude Projectiles)
1. Operators, managers or organizers of public places such as hotels, shopping malls, banks, stations, airports, stadiums, entertainment venues, etc., who fail to fulfill their obligations to ensure safety and cause damage to others, shall bear tort liability.
2. Where the conduct of a third party causes damage to others, the third party shall bear tort liability; if the operator, manager or organizer fails to fulfill the obligation of safety and security, it shall bear the corresponding supplementary liability. After the proprietor, manager or organizer bears supplementary liability, it may seek compensation from a third party.
Topic 36 Seven types of typical tort liability
Test Centre 157: Product Liability
1. Responsibility between producer and seller:
(1) If the product is defective and causes damage to others, the infringed party may claim compensation from the producer, the seller, or the seller;
(2) The product defect is caused by the producer, and the seller has the right to recover compensation from the producer after compensation; due to the fault of the sale, the product is defective, and the producer has the right to recover from the seller after compensation
2. Tort liability when defective products endanger personal and property safety: product defects endanger personal and property safety, the infringed party has the right to request (producer, seller), (stop infringement, remove obstruction, eliminate danger)
3. Warning and recall of defective products: defects are found after circulation, (producers, sellers), should be taken in time (stop sales, warning, recall), failure to expand the damage in a timely manner or ineffective remedial measures, and also bear tort liability for the expanded damage. (producer, seller), shall bear the necessary expenses incurred by the infringed party as a result
4. Punitive damages: Knowing that the product is defective, still producing and selling, or there is no effective remedy, causing death or serious damage to health, the right to request corresponding punitive damages
Test Centre 158: Environmental Pollution and Ecological Damage Liability
1. The principle of attribution of environmental pollution and ecological damage: the infringer shall bear tort liability for the destruction of the ecology due to environmental pollution, causing damage to others, and the infringer shall bear tort liability
2. The burden of proof of the infringer: the situation in which the polluting environment and the ecological damage are disputed, the perpetrator does not assume responsibility or reduces the liability, and there is no causal relationship, and the burden of proof is borne
3. Liability of two or more infringers for damage: determined according to factors such as the type, concentration, emission, mode, scope and extent of destruction, and the effect on the consequences of the damage
4. Punitive damages system: the infringer deliberately pollutes the environment and destroys the ecology causing serious consequences, and the infringed party has the right to request, corresponding, punitive damages
5. Unreal joint and several liability in ecological and environmental liability: due to the fault of the third party, it can be compensated to the infringer, the third party, or the infringer, and then recovered
6. Restoration liability in ecological and environmental liability: able to repair, state organs or legal provisions provide for organization, request a reasonable period of time to repair liability, not repaired within the time limit, on their own or entrusted to others, the cost is to be paid by the infringer
7. Scope of compensation for ecological and environmental liability: The organs or organizations stipulated by the state have the right to request the following losses and expenses
(1) Losses caused by the loss of service functions during the period from the damage to the ecological environment to the completion of the restoration;
(2) Losses caused by permanent damage to the ecological environment;
(3) Ecological environment survey and assessment costs;
(4) Liquidate pollution and restore ecological costs
(5) The cost of preventing damage from occurring and expanding expenditure
Test Centre 159: Liability for Damage to Animal Breeding
1. General provisions on the liability for damage caused by raising animals: the breeder or manager causes damage to others, the breeder or manager bears tort liability, the infringed person intentionally or grossly negligent, and may not bear or mitigate
2. Liability for the harm caused by illegal raising of animals: violation of management regulations, failure to take safety measures, breeder or manager, bear, infringed intentionally, can be mitigated
3. Liability for harm caused by illegal breeding of animals: Prohibited breeding of fierce dogs, etc., causing damage to others, breeders or managers, shall bear
4. Responsibility for the harm of zoo animals: The zoo should bear, fulfill its management responsibilities, and not bear it
5. Liability for the harm of abandoned or escaped animals: during the abandonment or escape period, the original breeder or manager
6. Untrue joint and several liability in the liability for damage caused by animal breeding: the fault of the third party can be requested from the breeder or manager, or it can be requested from the third party, the breeder or manager, and recovery
Test Centre 160: Liability for Damage to Buildings and Objects
1. Liability for damage caused by the collapse and collapse of real estate
(1) If a building, structure or other facility collapses or collapses and causes damage to others, the construction unit and the construction unit shall bear joint and several liability, except where the construction unit and the construction unit can prove that there is no quality defect. After the construction unit or construction unit has made compensation, if there are other responsible persons, they have the right to recover compensation from the other responsible persons.
(2) If a building, structure or other facility collapses or collapses due to the owner, manager, user or third party, causing damage to others, the owner, manager, user or third party shall bear tort liability.
2. Liability for infringement of buildings and other facilities, shelves, hangings falling off, falling off: If the owner, manager or user cannot prove that he is not at fault, he shall bear tort liability. After the owner, manager or user has compensated, if there are other responsible persons, they have the right to recover compensation from the other responsible persons.
3. High-altitude projectiles (1254)
(1) Throwing objects from buildings is prohibited. Where an object thrown from a building or an object falling from a building causes damage to others, the infringer shall bear tort liability in accordance with law; if it is difficult to determine the specific infringer after investigation, the user of the building who may have caused the harm shall be compensated unless it can be proved that he is not the infringer. After compensation, the user of the building who may have caused the injury has the right to recover compensation from the infringer.
(2) Property service enterprises and other building managers shall take necessary safety and security measures to prevent the occurrence of the circumstances provided for in the preceding paragraph; if they do not take necessary safety and security measures, they shall bear tort liability for failure to perform safety and security obligations in accordance with law.
(3) Where the circumstances provided for in paragraph 1 of this article occur, public security and other such organs shall promptly investigate in accordance with law and ascertain the person responsible.
(4) Rules of Fair Compensation (1186): If neither the victim nor the perpetrator is at fault for the occurrence of the damage, the loss shall be shared between the two parties in accordance with the provisions of the law
4. Liability for harm caused by piled objects: If the pile collapses, rolls down or slides off, causing damage to others, and the stacker cannot prove that he is not at fault, he shall bear tort liability.
5. Liability for harm caused by obstructing passage: If the objects that obstruct the passage are stacked, dumped or scattered on the public road, causing damage to others, the perpetrator shall bear the tort liability. If the public road manager cannot prove that he has fulfilled his obligations such as cleaning, protection, and warning, he shall bear the corresponding responsibility.
6. Liability for damage caused by forest trees: If the owner or manager of the forest tree cannot prove that he is not at fault due to damage caused by the breaking, dumping or falling of the fruit, etc., he shall bear tort liability.
7. Liability for construction damage
(1) If excavation, repair and installation of underground facilities in public places or roads cause damage to others, and the builder cannot prove that obvious signs have been set up and safety measures have been taken, he shall bear tort liability.
(2) Where underground facilities such as wells cause damage to others, and the manager cannot prove that he has fulfilled his management duties, he shall bear tort liability.
Article 20 of the Interpretation (III) of the Insurance Law: If the insurer refuses to pay the insurance premium on the grounds that the insured has not received treatment at the medical service institution specified in the insurance contract, the people's court shall support it, except where the insured must seek medical treatment immediately due to urgent circumstances.