Analysis of Examination Questions of National Judicial Examination in 2008 —— Examination Paper III F

Second, multiple choice questions. There are at least two correct answers in the option set of each question, and no score is scored for multiple choices, fewer choices, wrong choices or no choices. This section contains 5 1-90 questions, each with 2 points ***80 points.

5 1. Which of the following options is correct about civil rights?

A. Company A signs a loan contract with Bank B, and Party B's right to demand repayment from Party A is not exclusive.

B. Company C and Company D have reached an agreement that Party C will not build a building higher than a building in Dinglou, and this right enjoyed by Party D is dominant.

C the creditor requires the guarantor to perform, and the guarantor refuses to perform on the grounds that the creditor has not filed a lawsuit against the principal debtor or applied for arbitration. This right of the guarantor is the right of defense.

D the creditor's right to cancel the gift contract between the debtor and the third party is not limited by the statute of limitations.

Answer: ABCD

Analysis: Civil rights can be divided into domination, claim, defense and formation according to their functions. The so-called dominance refers to the exclusive right that the obligee can directly control the object of his rights. Property right is a typical dominant right, so are intellectual property right and personality right. The right of claim refers to the right of the obligee to ask others to do a specific act. The creditor's right is a typical creditor's right, and the claim right in A is a creditor's right, which is not exclusive, correct and arbitrary. B. The right enjoyed by Zhong Ding Company is easement, which is a kind of real right, leading, correct and electoral; The right of defense refers to the right to exercise rights against others. The right of defense is divided into permanent right of defense and deferred right of defense. In C, the general guarantor refuses to perform on the grounds that the creditor has not filed a lawsuit against the principal debtor or applied for arbitration, and exercises the right of defense in the first instance. C correct, elected; The right of formation refers to the right of the obligee to create, change or eliminate the civil legal relationship according to his own unilateral meaning. The right of revocation in D is the right of formation. For the right of formation, the predetermined period applies, not the limitation of action, so D is correct and elected. The correct answer to this question is ABCD.

52. Which of the following options is correct about the statute of limitations?

A. the statute of limitations only applies to the right of claim

B. The general limitation period is variable.

C the limitation of action shall be counted from the time when the obligee knows or should know that the right has been infringed.

D the payment received after the expiration of the limitation period constitutes unjust enrichment.

Answer: AB

Analysis: Article 135 of the General Principles of the Civil Law stipulates that the limitation of action for requesting protection of civil rights from the people's court is two years, unless otherwise stipulated by law. Therefore, option A is correct, and the limitation of action only applies to the right of claim; Article 137 stipulates that the limitation period of action shall be counted from the time when you know or should know that your rights have been infringed. However, if more than 20 years have passed since the right was infringed, the people's court will not protect it. Under special circumstances, the people's court may extend the limitation of action. Thus, C is wrong; Article 139 stipulates that in the last six months of the limitation of action, if the right of claim cannot be exercised due to force majeure or other obstacles, the limitation of action shall be suspended. From the date when the reasons for the suspension of the limitation of action are eliminated, the limitation of action shall continue to be counted. Article 140 stipulates that the limitation of action is interrupted by the institution of a lawsuit, the request of one party or the agreement to perform the obligation. From the time of interruption, the limitation period of action shall be recalculated. Therefore, option B is correct. Article 138 stipulates that if the parties voluntarily perform after the expiration of the limitation period, they are not subject to the limitation period. Therefore, the d option is wrong. The correct answer to this question is AB.

53. Party A borrows 50,000 yuan from Party B, and Party B requires Party A to provide guarantee. Party A found friends C, D, E and Ji respectively, and they made the following statements, which of which constitutes a guarantee?

A. Party C signs "Guarantor C" on the iou issued by Party A to Party B.

B. D sent a letter to Party B saying, "If Party A fails to repay Party B at the due date, I am willing to pay back 30,000 yuan".

C.e sent a letter to Party B saying that "if Party A fails to repay the loan to Party B when due, I shall be responsible for it".

D. I have sent a letter to Party B saying that "if Party A fails to repay the loan to Party B at the due date, I will pay off the debt with private houses".

Answer: ABC

Analysis: Article 6 of the Guarantee Law stipulates that the guarantee mentioned in this Law refers to the act that the guarantor and the creditor agree that when the debtor fails to perform the debt, the guarantor will perform the debt or assume the responsibility according to the agreement. Article 22 of the Interpretation of the People's Court on Several Issues Concerning the Application of the Guarantee Law of People's Republic of China (PRC) stipulates that a third party unilaterally issues a letter of guarantee to the creditor in written form, and if the creditor accepts it without raising any objection, the contract is guaranteed to be established. Although there is no guarantee clause in the main contract, if the guarantor signs or seals the main contract as the guarantor, the contract is guaranteed to be established. According to the above provisions, it can be seen that the behavior of C, D and E in ABC conforms to the guarantee method stipulated by law, so they constitute a guarantee and should be selected; Item d belongs to mortgage rather than guarantee, so item d is wrong and not selected.

54. Zhao, who likes tennis and swimming, bought a residential commercial house from Hongda Company. When handing over the house, he found that the tennis court and swimming pool in the residential model displayed by the sales department of Hongda Company did not exist. After investigation, there are no tennis courts and swimming pools in the design of the community. Which of the following options is correct?

A.zhao has the right to check out.

B. If Zhao requests to return the house, he has the right to ask HTC to bear the fault liability for concluding the contract.

C. if Zhao requests to return the house, he has the right to ask HTC to double the purchase price.

D. if Zhao doesn't ask to return the house, he has the right to ask HTC to bear the liability for breach of contract.

Answer: ABD

Analysis: Article 3 of the Interpretation of the People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Commercial Housing Sales Contracts stipulates that the sales advertisements and publicity materials of commercial housing are invitations to offer, but the explanations and commitments made by the seller on the housing and related facilities within the scope of commercial housing development planning are specific and have a significant impact on the conclusion of commercial housing sales contracts and the determination of housing prices, which shall be deemed as an offer. Even if the explanation and commitment are not included in the commercial housing sales contract, they should also be regarded as the contents of the contract. If a party violates it, it shall bear the liability for breach of contract.

55. Which of the following behaviors constitutes negotiorum gestio?

A. take someone else's cow for yourself by mistake.

B.b saw that the fire in his neighbor's house might damage his own house, so he put out the fire with his own fire extinguisher.

C.C. (15 years old) rented a car to take the students who fainted in physical education class to the hospital for treatment.

D. D. saw that the manhole cover on the road ahead was stolen and caused passers-by to fall, so he bought a manhole cover and paved it.

Answer: BCD

Analysis: Article 93 of the General Principles of the Civil Law stipulates that if there is no statutory or agreed obligation to manage or provide services in order to avoid losses to the interests of others, it has the right to ask the beneficiary to pay the necessary expenses. There are three elements that constitute negotiorum gestio: one is to manage other people's affairs; Second, seek benefits for others; Third, there is no fixed or agreed obligation. In A, because A does not mean to manage or serve others, it does not constitute negotiorum gestio. B, C and D all meet the constitutive requirements of negotiorum gestio, and the correct answer is BCD.

When Tingting was one year old, her parents invited a photographer from a photo studio to take a commemorative photo of her at home and asked the photo studio not to keep the negative for other purposes. After the photos were developed, the studio made Tingting photos into calendars for sale in violation of the agreement, which made a lot of profits. What is the debt relationship in this case?

A. Contract debts

B. Entrusted contract debts

C. Tortious debts

D. Debt of unjust enrichment

Answer: ACD

Analysis: Article 25 1 of the Contract Law stipulates that a contract is a contract in which the contractor completes the work according to the requirements of the ordering party, delivers the work results, and the ordering party pays the remuneration. In this topic, Tingting's parents invited a photographer from a photo studio to take commemorative photos for them. In fact, the photographer completed the photography work according to Tingting's parents' requirements and delivered the photographic works. Tingting's parents paid a certain amount of compensation, which was a contract. A's statement is correct and he was elected; Tingting's parents asked the studio not to keep the negatives for other purposes, but the studio violated the agreement and made Tingting's photos into calendars for sale, which made a lot of profits. In fact, the use of other people's portraits for profit constitutes an infringement of Tingting's portrait rights. C's statement is correct and he was elected; The so-called unjust enrichment refers to the act of accepting benefits without legal reasons, causing others to suffer losses. In this topic, there is no legal basis for the studio to obtain benefits by infringing Tingting's portrait right, so it constitutes a debt of unjust enrichment, so D's statement is correct. The correct answer to this question is ACD.

57. A thermal power plant bought 200 tons of coal from a coal mine. The agreed delivery date is September 30th, 2007, and the payment date is June 65438+1October 3rd1. At the end of September, the coal mine delivered 200 tons of coal. After the inspection of thermal power plant, it was found that the sulfur content of coal far exceeded the agreed standard, and it could not be burned in the plant according to government regulations. Based on the above situation, which claims of thermal power plants have legal basis?

A. Exercise the right of defense in turn

B. Require the coal mine to bear the liability for breach of contract

C. Exercise the right of uneasy defense

D. termination of the contract

Answer: ABD

Analysis: The right of defense of sequential performance refers to mutual debts between the parties. If there is sequential performance, the first performing party has the right to reject its performance request before it fails to perform. If the first performing party fails to meet the agreement, the second performing party has the right to reject its corresponding performance request. In this topic, the coal mine is the first performing party, and the debts performed by the coal mine do not meet the quality requirements of the contract, resulting in the thermal power plant being ordered by the government not to burn again. Therefore, thermal power plants can exercise the right of defense in an orderly manner. A's statement is correct and C's statement is wrong. Article 107 of the Contract Law stipulates that if a party fails to perform its contractual obligations or fails to meet the contract obligations, it shall bear the liabilities for breach of contract such as continuing to perform, taking remedial measures or compensating for losses. Therefore, the statement of B is correct; Article 94 of the Contract Law stipulates that in any of the following circumstances, the parties may terminate the contract: (1) the purpose of the contract cannot be achieved due to force majeure; (two) before the expiration of the performance period, one party clearly stated or indicated by its own behavior that it would not perform the main debt; (three) one party delays the performance of the main debt and fails to perform it within a reasonable period after being urged; (4) One of the parties delays the performance of debts or commits other breach of contract, which makes it impossible to achieve the purpose of the contract; (5) Other circumstances stipulated by law. In this topic, because the coal provided by the coal mine cannot be burned in the factory according to the government regulations, the purpose of the coal purchase contract of the thermal power plant cannot be realized, and the thermal power plant has the right to terminate the contract. D's statement is right.

58. Wang has a two-story building with a commercial billboard on the roof. The late king sold the second floor of the building to Zhang. Which of the following options is correct?

A. Zhang has no right to ask Wang to remove the billboard.

B. Zhang and Wang have formed a house ownership relationship.

C. Zhang has the right to manage the roof together with * * *.

D. Zhang has the right to share his advertising income after buying a house with Wang.

Answer: ABCD

Analysis: Article 70 of the Property Law stipulates that the owner has the ownership of the exclusive parts of the building, such as the business premises, and has the right to co-manage the parts other than the exclusive parts. Therefore, in this topic, Wang and Zhang have formed a relationship to distinguish the ownership of buildings, and they share the management right of the roof with * * *, and B and C are correct and elected; Article 76 The following matters shall be decided by the owner: …… (6) Rebuilding and rebuilding buildings and their ancillary facilities; ..... To decide the matters specified in items 5 and 6 of the preceding paragraph, it shall be agreed by the owners whose exclusive parts account for more than two-thirds of the total building area and more than two-thirds of the total number of people ... Therefore, Zhang has no right to ask Wang to dismantle the billboard in this issue, and A's statement is correct and he is elected; Article 80 stipulates that if there is an agreement on matters such as cost sharing and income distribution of buildings and their ancillary facilities, such agreement shall prevail; If there is no agreement or the agreement is unclear, it shall be determined according to the proportion of the owner's exclusive part to the total construction area. Therefore, D's statement is also correct, and Zhang has the right to request to share the proceeds with Wang. The correct answer to this question is ABCD.

59. Party A is the creditor of Party B, and Party B pledges its electric car to Party A. Now, in order to borrow money from Party C, Party A pledges the electric car to Party C without Party B's consent, and Party C doesn't know that the car belongs to Party B. Which of the following options is correct?

A.c. enjoys the pledge right due to bona fide acquisition.

B. Because without the consent of Party B, Party C cannot obtain the pledge.

C. Party A shall be liable to Party B for the damage or loss of electric vehicles.

D. Party B may claim compensation from Party C for the damage or loss of the electric vehicle.

Answer: ACD

Analysis: Article 84 of the Interpretation of the Guarantee Law stipulates that the pledgor exercises the pledge right with the movable property that it does not own but legally occupies. If the pledgee does not know that the pledgor has no right to dispose of the movable property and causes losses to the movable property owner, the pledgor shall be liable for compensation. In this topic, when Party A pledges the electric vehicle to Party C, in fact, Party A is the pledger and has no ownership of the movable property, but legally occupies it, so Party C enjoys the pledge right based on bona fide acquisition, and Party A's statement is correct and he is elected; Article 2 17 of the Property Law stipulates that if the pledged property is damaged or lost during the existence of the pledge without the consent of the pledger, the pledgee shall be liable for compensation to the pledger. Thus, C's statement is correct, and he was elected; So C is the actual owner of the electric car. If the electric car is damaged or lost in the hands of C, C is the actual infringer. Therefore, B can claim compensation from C, and item D is correct.

60. Wang He and Li are husband and wife. They take their daughter out for a trip. They all died in a car accident, but the time of death is uncertain. Which of the following options is correct?

A. Presumably, Wang He and Li died before their daughter.

B. it is speculated that Wang and Li died at the same time.

C. Wang and Li do not inherit from each other.

D. As the first heir, the daughter inherits the inheritance of Wang and Li.

Answer: ABCD

Analysis: Article 2 of the Opinions of the People's Court on Several Issues Concerning the Implementation of the Inheritance Law of People's Republic of China (PRC) stipulates that several people related to each other died in the same incident. If the time of death cannot be determined, the person presumed to have no heir will die first. If each deceased has an heir, if several deceased have different generations, it is presumed that the elders died first; Several deceased people were of the same generation, presumed to have died at the same time, and they did not inherit from each other, but were inherited by their respective heirs. In this topic, Wang, Li and his daughter are mutually inherited. They are all each other's heirs. They died in the same event, and the time of death cannot be determined. Wang and Li are the elders of their daughters, so it should be presumed that Wang and Li died before their daughters, and their daughters inherited Wang and Li's inheritance as the first heirs. A and d are correct; Because Wang and Li are contemporaries, it is presumed that they both died at the same time, and there is no inheritance relationship between them. B and c are correct. So the correct answer to this question is ABCD. come