20 19 Subjective Simulation of Law Examination "Civil Procedure Law"-Short answer 10.6

Simulation question (1)

Zhang, a reporter from Beijing Evening News, published a commentary in a newspaper. He said: In Beijing's literary world, some writers plagiarize other people's works and keep them for themselves, while others get rich without conscience? Shooter? Cultural quality and moral level need to be greatly improved. ? The newspaper is published in four districts under the jurisdiction of Beijing: A, B, C and D. Beijing writer and Li thought that the article was detrimental to the reputation of Beijing writers, so they filed a lawsuit in the People's Court of Beijing A District, demanding that the newspaper and Beijing Evening News reporter Zhang apologize and compensate for the losses. After accepting the case, the People's Court of Area A learned that the address of the newspaper was located in Area B, so it transferred the case to the People's Court of Area B. The People's Court of Area B took Li as the plaintiff, and the newspaper and Zhang Wei as the defendant. In the lawsuit, the newspaper, Zhang pointed out that Li held a public press conference before the prosecution, and insulted the newspaper and Zhang, which constituted an infringement of reputation. Therefore, Li counterclaimed and apologized and compensated for the losses. The people's court of District B accepts the counterclaim and tries it together with this case. The court found that the claim was not established, and the counterclaim was established. The judgment, Li apologized to the newspaper and Zhang and compensated for the losses. There is no objection to the judgment of counterclaim, but it is considered that the claim in this case is equally effective, and Li Wei appeals to this case.

Question:

1. Suppose both parties to this case reach an arbitration agreement after the dispute occurs and agree to submit this case to Beijing Arbitration Commission for arbitration. Afterwards, Zhang brought a lawsuit to the people's court. Should the people's court accept it?

2. Analyze the mistakes made by the people's court in this case.

3. If Chen Mou appealed, the contents of the appeal were withdrawn during the appeal, and the court decided to allow the appeal. Can the newspaper and Zhang ask him to carry out the first-instance judgment? Why?

4. During the trial of the court of second instance, Chen Mou withdrew the lawsuit, and the court of second instance thought that the judgment of first instance was indeed wrong. What should the court of second instance do?

5. What is the scope of review of the second instance of the people's court of second instance? If the judgment of the people's court of second instance in this case is improper, can it be corrected?

6. Li did not appeal. For him, can he execute the first-instance judgment without waiting for the result of the second-instance judgment? Why?

7. Suppose that the defendant in this case did not file a counterclaim in the procedure of first instance, but filed a counterclaim in the procedure of second instance. What should the people's court of second instance do? Why?

8. What should the court do if in the second instance, the newspaper and Zhang reach a settlement agreement and close the case?

9. In the second instance, both parties reached a mediation agreement, and the appellee requested the court of second instance to make a mediation agreement. What should the court of second instance do?

10. Assuming that the people's court of second instance changes the claims of this lawsuit and counterclaim, and judges that the defendants of this lawsuit and counterclaim apologize to each other and compensate for the losses, can the judgments of this lawsuit and counterclaim be offset in execution?

Reference answer

Answer and analysis

1. Suppose both parties to this case reach an arbitration agreement after the dispute occurs and agree to submit this case to Beijing Arbitration Commission for arbitration. Afterwards, Zhang brought a lawsuit to the people's court. Should the people's court accept it? (2 points)

The people's court shall accept it. (1 min) It is beyond the scope of arbitration to submit for arbitration because the personal relationship of the agreement has been violated, so the agreement is invalid. ( 1)

2. Analyze the mistakes made by the people's court in this case. (3 points)

In this case, the mistakes made by the people's court in litigation are:

(1) The people's court in Area A has jurisdiction and should not transfer the case to the people's court in Area B.. Because according to the law, the case of reputation right is under the jurisdiction of the people's court in the place where the infringement is committed or where the defendant has his domicile; The place of infringement includes the place where the infringement is committed and the place where the infringement result occurs. Therefore, Beijing's four district courts, A, B, C and D, all have jurisdiction. ( 1)

(2) Li participated in the litigation as an agent ad litem. ( 1)

(3) Zhang's article belongs to the job work. According to the Supreme People's Court's Answers to Several Questions on the Trial of Reputation Rights, Zhang should not be the defendant, but the newspaper he works for. ( 1)

3. If Chen Mou appealed, the appeal was withdrawn within the appeal period, and the court decided to allow the appeal. Can the newspaper and Zhang ask him to carry out the first-instance judgment? Why? (2 points)

Of course. ( 1)

Because according to the relevant provisions of China's civil procedure law, the withdrawal of the lawsuit at this time will lead to the automatic entry into force of the judgment and ruling of the second instance. ( 1)

4. During the trial of the court of second instance, Chen Mou withdrew the lawsuit, and the court of second instance thought that the judgment of first instance was indeed wrong. What should the court of second instance do? (2 points)

The lawsuit shall not be withdrawn and the trial shall continue. (1 min) According to the provisions of Article 337 of the Interpretation of Civil Procedure, in the procedure of second instance, if a party applies to withdraw the appeal, and the people's court considers that the judgment of first instance is indeed wrong or the party maliciously colludes to harm the national interests, social interests and the legitimate rights and interests of others, it shall not be allowed. ( 1)

5. What is the scope of review of the second instance of the people's court of second instance? ( 1)

The people's court of second instance only examines the claims stated in the appeal, that is, only the contents of Chen Mou's appeal.

6. Li did not appeal. For him, can he execute the first-instance judgment without waiting for the result of the second-instance judgment? Why? (3 points)

Li Can can't wait for the result of the second-instance judgment, and demands the execution of the first-instance judgment. (1) Because the court judgment is a whole, the judgment of the first instance has no legal effect because the plaintiff Chen Mou appealed, so it cannot be used as the basis for the parties to execute it; If the court of second instance finds that the original judgment other than the appeal request is indeed wrong, it should also be corrected. The court of second instance may think that the part of the first-instance judgment that is unfavorable to Li is wrong or revised. (2 points)

7. Suppose that the defendant in this case did not file a counterclaim in the procedure of first instance, but filed a counterclaim in the procedure of second instance. What should the people's court of second instance do? Why? (3 points)

In this case, the defendant did not file a counterclaim in the first instance procedure, but filed a counterclaim in the second instance procedure. The people's court of second instance shall mediate the counterclaim. If mediation fails, a separate lawsuit shall be instituted. ( 1)

This is determined by the two-instance final adjudication system in China's civil litigation, because if the court of second instance directly hears the case, the judgment made is the final judgment, which is equivalent to depriving the parties of the right to appeal. (2 points)

8. What should the court do if in the second instance, the newspaper and Zhang reach a settlement agreement and close the case? (2 points)

After the newspaper and Zhang reached a settlement agreement, there are two ways to do it:

(1) may request the people's court of second instance to make a conciliation statement; ( 1)

(2) Chen Mou may apply to the people's court of second instance for withdrawing the lawsuit. (2 points)

9. In the second instance, both parties reached a mediation agreement, and the appellee requested the court of second instance to make a mediation agreement. What should the court of second instance do? (2 points)

A conciliation statement shall be made. (1 min) According to the provisions of Article 172 of the Civil Procedure Law, the people's court of second instance may conduct mediation when trying an appeal case. If an agreement is reached through mediation, a mediation agreement shall be made, which shall be signed by the judge and the clerk and stamped with the seal of the people's court. After the conciliation statement is served, the judgment of the people's court that originally tried the case shall be deemed to be revoked. ( 1)

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