Analysis of judicial examination questions over the years: civil law (2) c

51.08 On May 8, 2002, while riding home through a construction site, Wang fell into a pit without obvious signs and safety measures, causing a fracture. In June of the same year 10, Wang found the employer and contractor of the construction project to claim compensation, and the two units passed the buck. On June 13 of the same year, Wang went to court to sue and was suddenly attacked by a typhoon and returned halfway. Which of the following statements is true?

A the statute of limitations in this case expired on June, 2003 10.

B Wang's behavior on June 13 led to the interruption of the limitation of action.

C. the employer shall bear civil liability.

D. the contractor shall bear civil liability.

Answer and analysis: AD A's statement about B is wrong. Article 136 of the General Principles of Civil Law stipulates that "the body is injured and claims compensation", and the limitation of action is 1 year. Article 140 of the General Principles of the Civil Law stipulates that the limitation of action is interrupted by bringing a lawsuit, one party making a request or agreeing to perform obligations. From the time of interruption, the limitation period of action shall be recalculated. C is wrong and D is right. Article 125 of the General Principles of the Civil Law stipulates that the constructor shall bear civil liability for digging, repairing or installing underground facilities in public places, roadsides or passages, without setting obvious signs or taking safety measures to cause damage to others.

52. Party A owes Party B 5,000 yuan, and Party B has repeatedly urged the payment, but Party A has delayed paying it back. After B sues A, he must pay back the money within half a month, otherwise he will sue. A immediately sold 90% of the only valuables at home, a new refrigerator and a color TV, to an informed C at the price of 150 yuan, and was discovered by B. Which of the following statements is correct?

A. Party B may notify Party A and Party C in writing to terminate the sales contract.

B. If the discovery date of Party B is May 2000 1, Party B will no longer enjoy the cancellation right from May 2, 2006.

C if party b brings a lawsuit to the court, and party a is the defendant, the court may add party c as a third party.

D. If Party B's cancellation right is established, Party A and Party C shall bear the lawyer's agency fees and travel expenses paid by Party B for this purpose.

Answer and analysis: Articles 74 and 75 of the BCD Contract Law stipulate that "if the debtor abandons the due creditor's rights or transfers the property for free, thus causing damage to the creditor, the creditor may request the people's court to revoke the debtor's behavior. If the debtor transfers the property at an obviously unreasonable low price, causing damage to the creditor, and the transferee knows the situation, the creditor may also request the people's court to revoke the debtor's behavior. " "The scope of cancellation right is limited to creditor's rights. The necessary expenses for the creditor to exercise its cancellation right shall be borne by the debtor. " "The right of revocation shall be exercised within one year from the date when the creditor knows or should know the reasons for revocation. If the cancellation right is not exercised within five years from the date of the debtor's behavior, the cancellation right will be extinguished. " Interpretation of Contract Law (1) Articles 24 and 26 stipulate that when a creditor brings an action for cancellation right in accordance with Article 74 of the Contract Law, if the debtor is the defendant and the beneficiary or assignee is not listed as a third party, the people's court may add the beneficiary or assignee as a third party. Necessary expenses such as lawyer's agency fees and travel expenses paid by the creditor in exercising the cancellation right shall be borne by the debtor; If the third party is at fault, it shall share it appropriately.

53. According to Chinese laws, what kinds of liens may occur in the following contracts?

A. Custody contract

B. Entrustment contract

C. processing contracts

D. Commercial agency contract

Answer and analysis: when certain conditions are met, the ACD lien is generated according to the law, not according to the agreement between the parties. According to the guarantee law, if the debtor fails to perform the creditor's rights arising from the custody contract, transportation contract or processing contract, the creditor has the lien. However, the parties may agree in the contract to exclude the lien. Article 422 of the Contract Law stipulates that if the trustee-trader completes or partially completes the entrusted affairs, the trustor shall pay corresponding remuneration to him. If the trustor fails to pay the remuneration within the time limit, the trustee-trader shall have a lien on the trustor, unless otherwise agreed by the parties.

54. Which of the following statements is correct about the gift contract?

A. the gift contract is a famous contract.

B. the gift contract is a unilateral contract.

C. A gift contract is a promise contract.

D. The gift contract is not a contract.

Answer and analysis: ABCD A Yes, the 15 contracts stipulated in the contract law are all famous contracts. B Yes, there are two kinds of unilateral contracts: one is that only one party undertakes the obligations, and the other is that one party undertakes the main obligations of the contract, and the other party only undertakes the subsidiary obligations. The obligations of both parties are irrelevant. The Contract Law allows the gift to be accompanied by obligations, but there is no consideration relationship between the donor's delivery of the donated property and the other party's subsidiary obligations, so the gift contract is still a unilateral contract. C Yes, China's Contract Law stipulates that a gift contract is a promise contract, which is established with the consent of the parties. D Yes, the law does not require the gift contract to take a specific form, so it is a non-gift contract.

55. Company B owes Company A 300,000 yuan, and Company A must pay off the payment of 200,000 yuan to Company B on September 20, 2000. Company A signed a written agreement with Company C on September 18 of the same year to transfer its creditor's rights of 300,000 yuan to Company B. On September 24 of the same year, Company B claimed the right of set-off of 200,000 yuan after receiving the notice of creditor's rights transfer from Company A.. Which of the following statements is true?

The creditor's rights transfer contract between Company A and Company C came into effect on September 24th.

B. After receiving the notice of creditor's rights transfer, Company B has the obligation to pay off 300,000 yuan to Company C..

Company C and Company B obtained the right of offset of 200,000 yuan on September 24th.

Company D.C may require Company A and Company B to bear joint liability for the repayment of the debt of 300,000 yuan.

Answer and analysis: BC According to Articles 80 and 83 of the Contract Law, the effect of creditor's rights transfer on the debtor is subject to the notice of creditor's rights transfer. When the debtor receives the notice of assignment of creditor's rights, if the debtor has creditor's rights to the assignor, he may still claim compensation from the assignee according to law.

56. Ms. He provided three pieces of wood for a custom-made wardrobe in a furniture factory. Shortly after the start of construction, Ms. He felt that the wardrobe style was not fashionable enough and asked the furniture factory to stop making it. The furniture factory thought this was an unreasonable request, so it continued to use the remaining two pieces of wood to make a wardrobe according to the original style. Which of the following statements is true?

A. The furniture factory shall compensate for the losses caused to Ms. He.

B. Ms. He shall pay the agreed full remuneration.

C. Ms. He should pay part of the remuneration.

D. Ms. He shall pay all the agreed remuneration and liquidated damages.

Answer and analysis: Article 263 of the AC Contract Law stipulates that if the work product is partially delivered, the ordering party shall pay accordingly. Article 268 of the Contract Law stipulates that the ordering party may terminate the contract at any time, and if losses are caused to the contractor, it shall compensate for the losses.

According to the contract law, the carrier shall not be liable for the following passenger casualties during transportation?

A. A passenger was stabbed by a gangster for stopping a pickpocket.

B. A passenger died of a heart attack during the normal running of the bus.

C. A lovelorn passenger died of excessive swallowing of sleeping pills while driving.

D. A free baby was injured by sudden braking during driving.

Answer and analysis: Article 302 of BC Contract Law stipulates that "the carrier shall be liable for damages for the casualties of passengers during transportation, unless the casualties are caused by the passengers' own health or the carrier proves that the casualties are caused by the passengers' intentional or gross negligence." The provisions of the preceding paragraph shall apply to passengers without tickets who are free of charge, hold preferential tickets or are permitted by the carrier.

58. After one party breaches the contract, the observant party requires it to continue to perform its liabilities for breach of contract. In which of the following circumstances does the people's court not support the request of the observant party?

A the debts of the defaulting party are non-monetary debts.

B. the subject matter of the debt is not suitable for compulsory performance

C. the cost of continuing the performance is too high.

The breaching party has paid liquidated damages or compensated for losses.

Answer and analysis: Article 1 10 of BC Contract Law stipulates that if one party fails to perform the non-monetary debt or the performance of the non-monetary debt does not conform to the agreement, the other party may demand performance, except for one of the following circumstances: ① it cannot be performed legally or in fact; ② The subject matter of the debt is not suitable for compulsory performance or the performance cost is too high; (3) The creditor fails to demand performance within a reasonable time limit.

59. Feng and Zhang verbally agreed to rent the facade room to Zhang for two years, and the rent was 1 1,000 yuan per month. After the performance of the contract 1 year, Zhang asked Feng if he could sublet it to Weng, and Feng agreed. Zhang and Weng reached an oral agreement, with a lease term of 1 year and a monthly rent of 1.200 yuan. Weng took over and dismantled the partition wall of the facade house without authorization. Feng wanted to take back the house after learning about it. Which of the following options is correct?

A. The lease contract between Feng and Zhang is an indefinite lease.

B. After Zhang sublets the house, Feng has the right to collect rent from Zhang, and the rent is 1.200 yuan per month.

C. Feng has the right to ask Zhang to restore the original state or compensate for the losses.

D. Feng has the right to ask Weng to bear the liability for breach of contract.

Answer and analysis: AC A Yes, Article 2 15 of the Contract Law stipulates that if the lease term is more than six months, it shall be in written form. If the parties fail to adopt a written form, it shall be regarded as an indefinite lease. C Yes, Article 224 of the Contract Law stipulates that "the lessee may sublet the leased property to a third party with the consent of the lessor. If the lessee sublets, the lease contract between the lessee and the lessor shall remain valid, and if the third party causes losses to the leased property, the lessee shall compensate for the losses. " "If the lessee sublets without the consent of the lessor, the lessor may terminate the contract." BD is wrong, and there is no contractual relationship between Feng and Weng.

60. Jony J is six years old and her parents are divorced. She is raised by her mother and lives with her. One day, Xiao Jia had a fight with his child Xiao B at lunch in kindergarten, and the class teacher C who was present didn't stop him in time. Xiao Jia pushed Xiao B to the ground, causing a fracture and spending 3,000 yuan on medical expenses. Xiao Yi's parents want to sue Xiao Jia's parents, kindergarten and C for compensation. Which of the following statements is true?

A. Jony J's mother should be liable for compensation.

B. Jony J's father shall be jointly and severally liable for compensation.

C. Kindergartens should give appropriate compensation.

D. party c shall be jointly and severally liable.

Answer and analysis: Article 158 of AC Mintong Opinion stipulates that if a minor child infringes on the rights and interests of others after divorce, the party living with the child shall bear civil liability; If it is really difficult to bear civil liability independently, the party who does not live with the children may be ordered to bear civil liability. Therefore, A is at fault in B. If people who live and study in kindergartens or schools or mental patients who are treated in mental hospitals are injured or cause damage to others, the supervision responsibility has been transferred to kindergartens, schools and hospitals. If these units cannot prove their innocence, they can be ordered to make appropriate compensation. So c and d are not right.

6 1. Wang and Zhou signed a written agreement when they got married, stipulating that the property obtained after marriage should be owned by both parties. After Zhou got married, he quit his job in order to support his in-laws and take care of the children at home. Wang worked in other places for a long time and then lived with Li. After Zhou was informed, he sued the court for divorce.

Which requests can the court support next week?

A. I demand compensation from Wang because I have done more for my family life.

B. Because he is specialized in family life and has not taken part in work, he requests the court to make a judgment to confirm that the agreement of both parties that the income after marriage belongs to each other is invalid.

C. Due to the difficulties in life after divorce, I asked Wang for appropriate help.

D. Because Wang lived with others, the two sides divorced and asked Wang to compensate for the losses.

Answer and analysis: ACD B is wrong. Article 19 of the Marriage Law stipulates that "husband and wife may agree that the property acquired during the marriage relationship and the property before marriage belong to themselves, * * * all or part of it belongs to themselves, and part of it belongs to * * *. The agreement shall be in writing. If there is no agreement or the agreement is unclear, the provisions of Articles 17 and 18 of this Law shall apply. " "The agreement between husband and wife on the property acquired during the marriage relationship and the property before marriage is binding on both parties." ..... Yes, Article 40 of the Marriage Law stipulates that the husband and wife agree in writing that the property acquired during the marriage relationship belongs to each other, and if one party pays more obligations for raising children, caring for the elderly and assisting the other party in work, it has the right to ask the other party for compensation at the time of divorce, and the other party shall make compensation. C Yes, Article 42 of the Marriage Law stipulates that in case of divorce, if one party has difficulties in life, the other party shall give appropriate help from his personal property such as his house. Specific measures shall be agreed by both parties; If the agreement fails, the people's court shall make a judgment. D Yes, Article 46 of the Marriage Law stipulates that if one of the following circumstances leads to divorce, the innocent party has the right to claim damages: (1) bigamy; (two) a spouse living with others; (3) committing domestic violence; (4) maltreating or abandoning family members.

62. A photo studio agreed with Party A: "The photo studio shoots photo albums for Party A free of charge, and Party A allows the photo studio to use one of them as a window advertisement for the photo studio." Hou Jia found that her photo was used in a sex drug advertisement. After investigation, the pharmaceutical company bought this photo from 500 yuan in the photo studio. Which of the following statements is true?

A. A photo studio violated A's portrait right.

B. the photo studio enjoys the copyright of a photo.

C. the behavior of the photo studio constitutes a breach of contract.

D. the behavior of the pharmaceutical company violated a's right to privacy.

Answer and analysis: ABC portrait right means that citizens have the right to decide whether to allow portraits to be displayed, disseminated, copied, used as trademarks or advertised. Without the consent of the portrait owner, no one may use his portrait on paper, books, newspapers, internet and other carriers for profit. Privacy, also known as personal privacy, refers to the right of citizens not to disclose or let others know their personal secrets. Photo photos belong to photographic works protected by copyright law, and the copyright belongs to the studio that created the works.

63. In order to set off the plot in a TV series, a film and television center used some music works of a genuine record as background music. Music copyright society of china (the collective management organization authorized by the copyright owner of a musical work) asked the producer to pay the remuneration without permission. After the association's request was rejected, it filed a lawsuit in court. Which of the following statements is false?

A. the game behavior is a fair use behavior.

B. the act of playing infringes on the performance right of the copyright owner of a musical work.

C. the act of playing infringes the producer's right to play the sound recording.

D. music copyright society of china is not a legitimate plaintiff

Answer and analysis: The fair use of item 12 stipulated in Article 22 of ACD Copyright Law does not include this issue. Article 37 of the Copyright Law stipulates that performers have the following rights to their performances: ① to show that they are performers; ② Protect the performance image from distortion; (3) Permitting others to broadcast live and publicly disseminate their live performances, and receiving remuneration; (four) to license others to record and video, and get paid; (five) to permit others to reproduce and distribute the audio-visual products of their performances and get paid; ⑥ Allow others to spread their performances to the public through the information network and get paid. Where a licensee uses a work in the manner specified in Items (3) to (6) of the preceding paragraph, it shall also obtain the permission of the copyright owner and pay remuneration. Article 43 of the Copyright Law stipulates that radio stations and television stations may broadcast published sound recordings without the permission of the copyright owner, but they shall pay remuneration. Unless otherwise agreed by the parties. Specific measures shall be formulated by the State Council. According to Article 8 1 of the Copyright Law, music copyright society of china can protect copyright-related rights on behalf of the copyright owner.