2007年國家司法考試真題解析卷四（In 2007, the national juridical examination was parsed）

1、2007年國家司法考試真題解析卷四（In 2007, the national juridical examination was parsed）In 2007 four the national judicial examination papers Zhenti analysisHint: This paper is for analysis and discussion. Please write down the answers in the corresponding position of the answer sheet. Dont answer them directly on

2、 the surface. A, (B. 20) the main content of our country use the socialist concept of the rule of law, and explains the basic connotation of the core content of the socialist rule of law.Answer requirements:1., a clear point of view, complete and accurate expression.2. no less than 400 words. Refere

3、nce answer:1., the socialist concept of rule of law includes five aspects: ruling the country by law, enforcing the law for the people, fairness and justice, serving the overall situation and leading the party.2., the core content of socialist rule of law is governing the country by law.3., the basi

4、c connotation of governing the country by law:The everyone is equal before the law, which is the basic principle of socialist rule of law under the Constitution: first, the legal status of citizens are equal; second, any organization and individual are not beyond the constitutional and legal privile

5、ges; third, any organization and individual violations must be prosecuted.Setting up and maintaining the authority of law is an urgent need for the implementation of the rule of law. First, we must safeguard the authority of the constitution; second, we must uphold the unity and dignity of the socia

6、list legal system; and third, we must establish the credibility of law enforcement departments and judicial departments.Strictly act according to law, which is the basic requirement of running the country according to law.Two (22 points)Case: Chen Zhao see acquaintances do business to earn a lot of

7、money will have a high malicious collusion, Zhao lied, owe your 100 thousand yuan payment, please ask for help of a high, and promised to return after a 10 thousand yuan as a reward to the high. Gao Mou agrees. One day, Chen and Gao to talk business in the name of the Zhao lured to a common Daoxiang

8、 house hotel room, Zhao Kouya, and Gao Zhao care. The next day, Chen and Gao Zhao Zhao money forced the cuff and kick. Zhao was forced to call its company teller Lee, to talk about a business, urgently needed 100 thousand yuan in cash on the grounds that Lee sent cash to a park near the hotel to che

9、n. Chen assigned a high park to get money. Lee came to the appointed place, see people do not know, refused to give money to Gao mou. High threat Lee said: Zhao has been seized by us, not to give me the money, we will kill Zhao. Li had to give 100 thousand yuan in cash to gao. A high back in the hot

10、el room, found that Chen is not in, Zhao fell dead at the window. See this situation, Gao Mou surrendered to the public security organs, and assist the judicial organs will Chen arrested. Later identified, Zhao fled because of climbing windows, Chen was using a stick to hit the brain, causing Zhao d

11、ied.Question:1., Chen Zhao Zhao detained to ask for 100 thousand yuan of behavior constitute what kind of crime? Why?2., a high Zhao Zhao will be detained to ask for 100 thousand yuan of behavior constitute what kind of crime? Why?3., Chen and Gao Mou constitute a common crime? Why?4. high in a park

12、 to get Lee 100 thousand yuan behavior, whether constitutes extortion? Why?5., Chen Zhaos death, how should bear criminal responsibility? Why?6., Gao Mou whether to Zhaos death consequence assumes the criminal responsibility? Why?7., the surrender of a high behavior is set up, surrender and meritori

13、ous? Why? Reference answer:1, constitute robbery rather than kidnapping, because Chen is directly to Zhao for property, not to the third party for property.2, constitute the crime of illegal detention, because Gao Mou did not kidnap intentionally, and thought it was to ask for debt.3, constitute a c

14、ommon crime. Because, according to some crimes jointly said, Chens crime of robbery and a high number of illegal detention between the crime of establishing a common crime.4, does not constitute extortion, because the behavior of Gao belongs to the detention of others after the acquisition of debt,

15、the lack of illegal possession of the purpose.One hundred and twenty-three?5, no other intentional homicide, because Chens intentional homicide included in the robbery.6, without criminal responsibility,Because Chens killings beyond the intentional range of a high.7, the establishment of surrender a

16、nd major meritorious service, because the prosecution may be sentenced to life imprisonment or above punishment. In the course of the sprint class, the problem has been emphasized many times.Three, (subject 20) case: the defendant a and B jointly killed the victim C. In the first instance procedure,

17、 after the prosecutor has interrogated the defendant, a and b,Upon the permission of the presiding judge, the father of Martin, in his capacity as a civil plaintiff, questions a and B about the facts of the crime and property. Property managers in the community lived in court hearing the case, and r

18、esponding to the prosecutions request for evidence of the victims condition, and answered questions from the defenders, the prosecutor and the presiding judge. The trial court of the collegial testimony and other evidence by doubt, then adjourned the death time and causes further investigation and v

19、erification. Court investigation, the prosecutor found that the defendant B has omitted the facts of the crime, the court called for the withdrawal of the prosecution, the court review, agreed to withdraw the decision to prosecute. After the re prosecution, a and B were sentenced to death and compen

20、sate the plaintiff losses of 100 thousand yuan. B after the sentencing appeal, the court of second instance only examined the crime Part B, believes that the original verdict facts and the applicable law is correct, appropriate sentencing, was upheld, and report to the approval of the Supreme People

21、s court.Question: please point out the impropriety of the procedure in the above case and briefly analyze the reason. Reference answer:1, the prosecutor accused of a and B were asked in violation of the newsletter with the principle of interrogation.2, incidental civil action, the plaintiff can not

22、ask the defendant about the facts of the crime.3, as a witness, can not audit the case trial.4, as the prosecution witness, the prosecution and prosecution both directions their questions in the wrong order, should first ask the summoned party to ask questions.5, the prosecutor found in the trial of

23、 leakage of crime, can only add an indictment, can not withdraw the prosecution. Change or addition, withdraw the prosecution shall be submitted to the attorney general or the procuratorial committee decided, and in writing to the peoples court, the prosecutor in court cannot directly decide.6, the

24、courts request for the prosecution to withdraw the prosecution should be made in the form of a ruling and not in the form of a decision.7, to hear cases involving the defendants appeal, the whole case shall be examined, including the review of the crime and the incidental civil action of a and B. In

25、 the course of the sprint class, the problem has been emphasized many times.Four (23 points)Case: in February 10, 2007, the company signed a purchase of 1000 sets of a microwave oven contract with company B, agreed by company B 310 July before check in, cash on delivery. Company B on schedule for th

26、e check, but when loading multiple installed 50 Taiwan B microwave oven.A company to sign a contract with the third company in March 13th, will be in transit the contract of 1000 sets of a microwave oven sold to third company, 10 days after the arrival of the goods at the agreed period after the goo

27、ds quality inspection.In March 15th, the outbreak of the goods in transit sudden flash floods, resulting in 100 sets of a microwave oven damaged scrap.March, 20 Japanese goods to C company. In April 15th, the company refused to pay the goods on the basis of the partial quality of the goods, and dema

28、nded the return of the goods. Customer Zhang San bought a microwave oven from the third company B, microwave oven explosion occurred in the course of normal use, caused by an injury to his right arm three,The cost of the medicine is 1200 yuan. Question:1. if a B company asks for payment by a company

29、 after completing the consignment procedure, should a company make payment? Why?2. B company after the completion of the consignment formalities, the ownership of the goods to whom? Why?3. who should take the risk of losing 100 microwave ovens due to flash floods? Why?50 type microwave oven 4. for B

30、 company installed, it should be how to deal with? Why?Can the 5. C company refuse payment and return the goods? Why?SixWho can Zhang three claim for damages? Why? Reference answer:1. should not. Because the contract is cash on delivery, and in fact, the goods have not arrived, or a company enjoys t

31、he first (after) performance of the right to defense.2. belongs to a company. Because delivery has been completed.3. by the company of propylene. The risk of accidental loss of the goods in transit shall be bought from the contract when the seller sells the goods carried by the carrierOne hundred an

32、d twenty-four?Be borne.4. B. the company has the right to request the return of the company. Because it belongs to unjust enrichment.5. have no right to refuse payment and ask for return. Because the contract has stipulated the quality inspection period, the company has not raised any objection duri

33、ng this period, and it is deemed that the quality is up to the requirements.6., three may claim to the C company, also may claim to B company. The victim has the right to claim compensation from the manufacturer or seller for any personal injury caused by the product defect.In the course of the spri

34、nt class, the problem has been emphasized many times. Five (20 points)Case: A and B were invested 600 thousand yuan and 2 million 400 thousand yuan to set up a common Xinyu Development Co. Ltd. (hereinafter referred to as Xinyu company), the company responsible for the management and the executive d

35、irector of B, a supervisor. At the same time for its personal investment Dongfeng limited liability company (hereinafter referred to as Dongfeng company) general manager, the company owed Baiyun company 500 thousand yuan, not yet. B and Baiyun company reached an agreement agreement: if after 3 month

36、s can not repay, B in the Xinyu company 20% equity transfer to the cloud company, and expressed willingness to this pledge. If not, Dongfeng company repayment, Baiyun company request B B to fulfill the agreement, and discuss the matter has not been a shareholder as an excuse to stall, Baiyun company

37、 hence plans to solve the problem through litigation.Dongfeng company need to rent warehouse, B arbitrarily decided to a house Xinyu company to the low prices rented to Dongfeng company. Bs friend C because of a bank loan need to guarantee, find B. B in the name of Xinyu company to the bank issued a

38、 guarantee, promiseIf the expiration of C cannot reimbursement by Xinyu company responsible for the liquidation, the bank accepted the guarantee and no objections. A, after knowing the above situation, proposed to hold a meeting of shareholders to solve the problem. The company was founded three yea

39、rs, a dividend has not been divided, the current loss serious. A company to dissolve the company, but B does not agree. A decision to transferEquity withdrawal from the company, but not found a transferee. Question:1., Baiyun company, if you want to resolve disputes with Dongfeng company through lit

40、igation, how to file a lawsuit?2. what facts does Baiyun company need to prove if it wants to achieve equity pledge?3. for B will Xinyu companys low rent housing for Dongfeng company behavior, a law can take what measures?How the nature and effect of 4. B on behalf of Xinyu, a single direction issue

41、d by the bank guarantee? Why?5., in view of the non consent of the dissolution of the company and the withdrawal of the company from the company and the absence of the assignee, what legal measures may be taken by the company? Reference answer:1, (1) request Dongfeng company to repay the principal a

42、nd interest of the loan;(2) request Dongfeng company to undertake the liability for breach of contract;(3) asking for the exercise of equity pledge (or pledge of rights).2, (1) proved that it signed a equity pledge contract with b;(2) it has been proved that the equity pledge has been registered wit

43、h the administrative department for Industry and commerce.3, a company can directly bring a shareholders derivative action to the court for the benefit of the company.4, the letter of guarantee has the nature of the contract to ensure the validity of the contract. Although it has infringed upon the

44、interests of the company without the consent of the shareholders meeting, its behavior constitutes a form of representation.5, a company holds 20% of the shares, may request the court dissolution of the company.Six (20 points)Case: in May 24, 2006, hired Liu (owner) Zhang driving freight, passing th

45、rough a wooden bridge, the bridge broken, and even the car with people fall into the river. After Zhang falls, the doctor pays for medical expenses at his own expense.Liu repeatedly found the bridge owner Nam river company claims, no fruit. Liu YuJanuary 25, 2007 will be taken to court, ask for comp

46、ensation car repairs, outage losses totaling 13. 50 thousand yuan. The court applies the summary procedure to hear the case, and specifies the period of proof for 15 days. During this period, Liu provided the court with the ownership certificate and purchase of the carVehicle invoices and other evid

47、ence. When the court of first instance, Liu and the court to provide the repair invoices. The court investigation, the defendant company, claims that the evidence has exceeded the time limit for adducing evidence, and Liu Mouze explained that the evidence is delayed because of busy work, failed to o

48、btain invoices in a timely manner, and finally the judge still arrange the cross examination of the evidence. By mutual consent, the court presided over the case mediation. In the mediation, the defendant acknowledged that there was a work omission and did not publish the notice of the abandoned woo

49、den bridge in time; the plaintiff also admitted that he knew the wooden bridge had been abandoned, but did not expect it to break. The two sides finally failed to reach a settlement agreement. March 2007On the 16 day, the court held that the defendant took the primary responsibility according to the

50、 facts and circumstances stated by the two parties in the mediation, and the plaintiff assumed secondary responsibilityAfter the relevant evidence, the defendant was sentenced to compensate the plaintiff for the auto repair fee and the outage cost of the total amount of 80 thousand yuan. Liu immedia

51、tely said he would appeal.In March 29, 2007, Liu died of illness. Liu Mouzhizi Liu on 5 April 2007 to the court of appeal; and puts forward the relevant evidence, asking the court to confirm the legal status of the parties, and postponed the deadline to appeal, the court accepted the Lius appeal and

52、 agreed to postpone the appeal period.In July 3, 2007, the court of second instance verdict: the plaintiff to provide evidence in the amount of car repairs is not real, according to new evidence, the appellant appellee for car repairs, outage losses totaling 4. 50 thousand yuan.Question:1., please p

53、oint out the problems existing in the trial of the court of first instance and explain the reasons.2. is Lius appeal set up? Why?3. please judge the judgment of the second instance court and explain the reason.4., such as Zhang on their own medical claims, who can claim? Why? Reference answer:1, (1)

54、 the court of first instance requested the defendant to make a cross examination of the evidence of the plaintiff exceeding the time limit for proof, and that the evidence submitted by a party beyond the time limit for proof shall not be examined without the consent of the other party;(2) the court

55、of the parties in the mediation as a fact that responsibility for evidence of errors, the parties in order to reach a mediation agreement on the relevant facts of the approval, shall not be used as evidence against them in the following procedure.2, founded. Because Liu died, legal changes will occu

56、r by the parties, the status of litigation by the legal heir inheritance; Liu Mouzhi as Liu, Liu inherited the status of compliance with the law, can be as the case of the appellant; Liu Shenqing postponed the appeal period in accordance with the law.3, the court of second instance shall, in accorda

57、nce with the circumstances ascertained by itself, reduce the appellants compensation for the automobile repair and the car stoppage, and do not violate the provisions of the law.4, Liu can be advocated, because of its employment relationship with Liu, you can also claim to the South River hydropower

58、 company, due to the South River hydropower company infringement.Seven, (25 points) prompt: the question for the election questions, sub A, B, two questions. Please choose a question to answer; when answering, please mark a or B questions; a and B two questionsAre the only answer, reviewing in writing before. A title:A: Chinese books the young school took set: the world only saints to non litigation injustice provokes outc