Case Analysis of National Judicial Examination Volume IV

# Judicial Examination # Introduction In order to help candidates systematically review the judicial examination and fully understand the relevant points of the judicial examination, the examination network has compiled the case analysis questions of the fourth volume of the national judicial examination, hoping to help you take this examination!

Case 1

In this case, Lei and Hong became enemies because of some trivial matters. One day, when Lei went to work, Hongmou came to Lei's house. Lei's son has just turned 65,438+00 years old and is alone at home. Hongmou rushed in and smashed Lei's TV. When Lei's son stepped forward to stop him, Hongmou chopped him with a dagger. When the scuffle happened, ray came home from work and was frightened. In order to save his son from accidents, he picked up an iron bar and chased Hong. The public security organ filed a case for investigation and decided to release Lei on bail pending trial. Lei paid the security deposit to the public security organ according to law, with Li, the general manager of his company, as the guarantor. After the investigation, it will be transferred to the people's procuratorate for review and prosecution. The procuratorate believes that Lei's behavior belongs to self-defense, so he made a decision not to prosecute "the circumstances of the crime are minor and there is no need to sentence or exempt the punishment according to the provisions of the criminal law". The victim Hongmou refused to accept and filed a criminal private prosecution with the people's court at the same level. The court refused to accept the complaint. I'm sorry, ray. I'm not satisfied with the decision. He filed a complaint with the people's procuratorate at the next higher level on the 9th day after receiving the decision, and the people's procuratorate at the next higher level still upheld the decision not to prosecute.

Q: What's wrong with the proceedings in this case? And explain why.

Answer analysis

The violations in the lawsuit in this case are as follows:

1. Public security organs should not require both a deposit and a guarantor to obtain bail pending trial. A person who is released on bail pending trial cannot be required to provide a guarantor and pay a deposit at the same time.

Article 2 1 of the six organs regulations stipulates that based on Article 53 of the Criminal Procedure Law, that is, if the people's court, the people's procuratorate or the public security organ decide to release the criminal suspect or defendant on bail pending trial, they shall be ordered to put forward a guarantor or pay a deposit.

2. The procuratorial organ believes that Lei's behavior belongs to self-defense. "If the circumstances of the crime are minor, there is no need to sentence or exempt the punishment according to the provisions of the Criminal Law", and a decision not to prosecute should not be made. The procuratorate shall make a decision not to prosecute "not to pursue criminal responsibility according to law".

Article 142 of the Criminal Procedure Law stipulates that the people's procuratorate shall make a decision not to prosecute a criminal suspect in any of the circumstances specified in Article 15 of this Law. If the circumstances of the crime are minor and it is not necessary to sentence or exempt from punishment according to the provisions of the Criminal Law, the people's procuratorate may make a decision not to prosecute. In this case, Lei's behavior belongs to Article 15, "Other laws (criminal laws) provide exemption from criminal responsibility", and a legal decision not to prosecute should be made.

3. The court should not refuse to accept the criminal private prosecution of the victim Hong on the grounds of "no prosecution". The victim may bring a suit directly to the people's court without appealing.

Article 145 of the Criminal Procedure Law stipulates that if the victim refuses to accept the decision of the procuratorate not to prosecute, he may appeal to the procuratorate at the next higher level. If the procuratorate maintains the decision not to prosecute, the victim may bring a lawsuit to the people's court. The victim may also bring a suit directly to the people's court without appealing.

4. The procuratorate is sorry that the complaint filed by the plaintiff Lei Mou on the 9th day after receiving the decision not to prosecute will not be accepted. The appeal period is only seven days.

Article 146 of the Criminal Procedure Law stipulates that if a non-prosecutor refuses to accept the decision made by the people's procuratorate in accordance with the second paragraph of Article 142 of this Law, he may lodge a complaint with the people's procuratorate within seven days after receiving the decision.

5. The people's procuratorate at the next higher level will not accept the complaint of the non-prosecutor and make a decision. The person who is not prosecuted can only appeal to the people's procuratorate that made the decision.

Article 303 of the the Supreme People's Procuratorate Rules stipulates that if a non-prosecutor refuses to accept the decision made by the people's procuratorate in accordance with the second paragraph of Article 142 of the Criminal Procedure Law and lodge a complaint within 7 days after receiving the decision, the people's procuratorate that made the decision shall file a case for review, and the complaint department shall handle it.

Watch industry tourism

The case is that District Lihua, a retired cadre of a unit in Huadu City, built a house in his hometown in the suburbs after retirement, and spent his old age there. Later, district Lihua died in February 1993, and the house he built was inherited by his three sons, the district with less width, the district with less thickness and the district with less wealth. The three brothers are rich in urban housing, so they discuss selling the house in the suburbs. Longjia brothers Longjia and Longyi are willing to buy this house. As a result, the three brothers in the district signed a house purchase contract with the two brothers in Longjia, stipulating that the brothers in Longjia would pay 20,000 yuan in cash. After reaching an agreement, Longhe District went to the housing management department to handle the house transfer procedures. Since Longjia couldn't come up with 20,000 yuan in cash at the moment, both parties agreed to deliver the goods two months later. Two months later, Long Jia didn't give money. Four months later, the brothers in the district repeatedly urged Long Jia. The Longjia refused to say that they had no money, so they asked Longyi for the house payment, explaining that Longyi was in business and had cash to pay. So the brothers in the district failed to claim compensation from Yi Long, and the three brothers in the district sued the same court for repayment with Yi Long as the defendant. After accepting the case, the court held that the three brothers in the district should be * * * and the plaintiff, and their lawsuits should be tried together. During the trial, due to Qu Shaofu's business trip, a mediation agreement was reached with Qu Shaokuan and Qu under the auspices of the court, and the brothers in the district were paid the house purchase price of 18000 yuan. When the conciliation statement was delivered to Shaofu District, it was refused on the grounds that it was absent at that time and the conciliation was conducted without its consent, and the defendant still insisted on paying 20,000 yuan.

question

1. What is the legal relationship between this case and the parties to the dispute? For what kind of lawsuit?

2. Is it correct for the court to list the three brothers and the plaintiff in the district as * * *?

3. Is there anything wrong with the court's practice?

4. Is the mediation agreement valid? Can the people's court issue a conciliation statement accordingly?

Answer analysis

1. The legal relationship in dispute in this case is the house sales contract dispute between Qu San and Long Jia. One of the parties is the three brothers of the district family, and the other is the two brothers of the Long family. In this case, it is necessary for * * * to join the lawsuit. The relationship between the three brothers in the district family and the plaintiff is * * *, and the relationship between the two brothers in the Long family and the defendant is * * *.

2. It is correct for the court to merge three people's lawsuits. Because the litigation objects sued by the three brothers in the area all come from the same legal relationship, that is, the house sales contract between the two parties, this case belongs to more than two parties and the object is * * * litigation, that is, the necessary * * * litigation is inseparable, and the people's court must merge the litigation.

3. yes. The people's court should add Long Jia as * * * co-defendant, because this case is an inseparable necessary * * * co-defendant, and Long Jia is a necessary * * * co-defendant and must participate in the proceedings. Those who do not participate in the proceedings shall be added as * * * co-defendants by the court according to law.

4. Without the consent of Longjiahe District Shaofu, the mediation agreement is invalid. The court cannot issue a conciliation statement on this basis.

Case 3

The criminal Chu is a former member of the Standing Committee of the People's Congress of Shunmin County, Zhejiang Province. On April 25, 2006, Chu went to Longwan District, Wenzhou City to attend the "horizontal contact meeting" held by the Standing Committee of Longwan District People's Congress. At 9 o'clock on the evening of the 26th, Chumou came to Jinjiang Road in Wenzhou alone and met Li, a prostitute, on the stone bench under the big banyan tree. Zou took the initiative to talk to Li, asked about his identity and accommodation price, and took Li to Bandung Hotel to discuss accommodation matters with him. Later, he was arrested by the security defense team and transferred to Longwan District Branch of Wenzhou Public Security Bureau. When being interrogated in Longwan District Branch, Chu assumed the pseudonym "Chang Jian" and lied that he was a self-employed person in Shunmin County. He had a bad attitude, refused to admit his mistake, and had an argument with Wang Xiang, the police officer of the sub-bureau who interrogated him. Wang and Xiang hit Chu, and Chu was bruised in many places. On April 27th, Longwan Branch of Wenzhou Public Security Bureau identified Chang Jian (Chu) as a prostitute. According to Article 66 of the Law on Public Security Administration Punishment, "Whoever sells * or * prostitution shall be detained for more than 15 days and may be fined less than 5,000 yuan; If the circumstances are relatively minor, they shall be detained for less than 5 days and fined for less than 500 yuan. Those who solicit customers in public places shall be detained for not more than 5 days or fined for not more than 500 yuan ",given administrative detention 10, and sent to the administrative detention center for execution on the same day. Longwan District, Wenzhou City, Shunmin County People's Congress Standing Committee because Chu's whereabouts are unknown, looking around. On April 28, it was found that Chu was detained in the administrative detention center of Wenzhou Public Security Bureau and released on bail on April 29.

question

1. If Chu refuses to accept the punishment decision of administrative detention, which organ can he apply for reconsideration?

2. Does Chu's application for suspension of execution during administrative detention comply with the provisions of the Law on Public Security Administration Punishment, and does the administrative ruling of Longwan District Branch not need to be executed?

3. If the reconsideration organ maintains the administrative ruling of Longwan District Branch, and Chu refuses to accept the reconsideration decision of the reconsideration organ and brings an administrative lawsuit to the court, who should be the defendant?

4. In the first trial, Longwan Branch found the waiters in Bandung Hotel, asked them and made a record. Is the behavior of Longwan Sub-branch legal? Can the court take this newly collected evidence as the basis for determining the legitimacy of the specific administrative act?

5. Chu was beaten by the public security police Wang and Xiang, and his whole body was bruised and he could not work normally. Can he claim administrative compensation?

6. How did Chu ask for administrative compensation? What compensation standard should the public security bureau pay?

7. What responsibility does Wang, a policeman of Longwan Branch, bear for the damage of Chu?

8. What should I do if Li Wei, a prostitute in an apartment in Chu, is found to be full 14 years old after administrative punishment by Longwan Branch?

Answer analysis

1. Chu can apply to Wenzhou Public Security Bureau for reconsideration.

2. Abide by the provisions of the Public Security Administration Punishment Law. Suspension of execution does not mean that there is no need to implement the administrative ruling of Longwan District Bureau, but only conditional suspension of execution. Once the administrative penalty is implemented, the public security organ shall promptly refund the deposit paid by the payer and execute the original administrative ruling.

3. If the reconsideration organ maintains the administrative ruling of Longwan Branch, Chu should take Longwan Branch as the defendant.

During the first trial, it was illegal for Longwan Branch to collect evidence from witnesses. Article 33 of the Administrative Procedure Law stipulates: "In the course of litigation, the defendant shall not collect evidence from the plaintiff and witnesses on his own." Article 3 of the Provisions on Several Issues of Evidence in Administrative Litigation stipulates: "According to Article 33 of the Administrative Litigation Law, in the course of litigation, the defendant and his agent ad litem shall not collect evidence from the plaintiff or witness on their own." Article 60 stipulates: "The following evidence cannot be used as the basis for determining the legality of the defendant's specific administrative act: (1) the evidence collected by the defendant and his agent ad litem after the specific administrative act occurred or during the litigation; (2) Evidence used by the defendant in administrative procedures to illegally deprive citizens, legal persons or other organizations of the right to state, defend or hear according to law; (3) Evidence provided by the plaintiff or the third party in the lawsuit that the defendant did not use as the basis for specific administrative actions in administrative proceedings. " Therefore, the court cannot take this newly collected evidence as the basis for determining the legality of the specific act being sued.

5. Chu can claim administrative compensation. According to Article 3 of the State Compensation Law: "If an administrative organ and its staff infringe upon personal rights by exercising administrative functions and powers, the victim has the right to compensation: (1) illegally detaining or illegally taking administrative compulsory measures that restrict citizens' personal freedom; (two) illegal detention or other illegal deprivation of personal freedom of citizens; (3) Causing bodily injury or death to citizens by violent acts such as beating or instigating others to do so; (four) the illegal use of weapons and police equipment, causing physical injury or death of citizens; (5) Other illegal acts that cause bodily injury or death to citizens. "In this case, Chu was beaten and injured by the public security police, which obviously belongs to the situation stipulated in Item (3) of Article 3 of the State Compensation Law.

6. At the beginning, it shall be submitted to the Longwan Branch of the organ liable for compensation, or it shall be submitted together when applying for administrative reconsideration and bringing an administrative lawsuit. The public security bureau should pay Chu's medical expenses and compensate for the reduced income due to missed work. The compensation for daily income reduction is calculated according to the average daily salary of employees in the previous year, and the amount is five times of the average annual salary of employees in the previous year.

7. Longwan District Branch can claim compensation from the police officers Wang and Xiang respectively.

8. If Li Wei, a prostitute in an apartment in Chu, is 14 years old, Longwan Branch shall transfer the case to judicial organs for criminal responsibility according to law.

Case 4

The facts of a legal case

Some villagers in H village held private school education without being registered by the education administrative department, which was banned by the county government. Organizers refused to accept this kind of education, thinking that the effect was very good and did not violate the compulsory education law. However, the county government believes that although the villagers recognize this kind of education, according to the Compulsory Education Law, this kind of education without approval and registration and without teacher qualification is illegal and cannot be regarded as legal education.

Please use the basic theory of law to analyze some problems exposed by this incident.

Answer a request

1. Use the legal and social knowledge you have mastered to explain your own views and reasons;

2. Full reasoning, rigorous logic, fluent language and accurate expression;

3. The number of words is not less than 500 words.

Answer analysis

The incident revealed that the law is often limited, and it is often not the laws formulated by the state that play a role in real life, so there will be a tension between law and tradition.

The limitations of the law are as follows: first, the legislative purpose is vague, and it is impossible for human legislators to understand all the possible combinations in the future, which is a lack of ability to predict the future. Second, there is still relative ignorance of facts in legislation. From this incident, it means that starting from one's own preferences, it may cause conflicts and deviations with a large number of other facts. On the one hand, the limitation of law is the problem of legislators' ability, on the other hand, it is also the result of legislators' preference. Legislators' preference is only a state in a certain situation, and it is inevitable that they cannot make a keen analysis of everything in the future and reality, that is, preference is only in front of them. An important preference of the Compulsory Education Law is to give legitimacy to the education organized by the government, so it is impossible to predict the diversification of educational forms in the future and in reality. In the face of formal rational law, the clearer the concept, the clearer the essence of things will be. Therefore, cram school is definitely not a legal concept of education. Therefore, some villagers are puzzled: Why is it illegal to study in the village? It can be seen that the specific preference leads to the relative ignorance of the future and facts, that is, the compulsory education law cannot be the preference of all time and space, nor can it conform to the unique situation of each time and space. In H village, the villagers' private education has always been an important reason for the prosperity of local education. On the other hand, why education should become an obligation is based on a preference of legislators: legislators believe that the basic cultural quality of the whole people should be improved in this way, which actually assumes that the educational tradition, economic state and social structure of the whole country are at the same level. In fact, the trend of education and the degree of re-education in different regions are different. In H village, there are both the tradition of learning and the specific economic and social conditions of learning. The pessimistic logical assumption of the Compulsory Education Law is that if there is no law, there will be a large number of dropouts, which will affect the basic quality of the whole people. Therefore, from the perspective of substantive rationality, even accepting traditional education is justified. China is a country that emphasizes substantive justice and rationality, but from the point of view of formal rationality of law, it will make a negative evaluation of this kind of behavior.

Due to the existence of legal limitations under formal rationality, society reinterprets the law according to its own preferences. Each party will make a choice that suits its own preferences under the law. In this process, the effectiveness of the law will not be as unscathed as the normative form. In different time and space dimensions, if the established law is not enough to summarize all the situations (in fact, it is impossible), the effectiveness of the law will inevitably be affected. For students in H village, cram schools have comparative advantages, so they will not be willing to enter the gate of state-run schools, so the effectiveness of compulsory education law will be weakened in the selection process.

The limitation of law leads members of society to choose specific behavior patterns and attitudes towards law according to their own habits. The realization degree of legal effect is actually the satisfaction degree of legislators' preferences, so it has no universal value and absolute legitimacy, and because of the limitations of individual preferences in time and space, it will inevitably lead to the choices of other parties in society. The preference of legislators leads to the limitation of law, which inevitably leads to the understanding and interpretation of the law by all parties when adjusting social relations: the judiciary has its judicial interpretation and discretion, and the government has its specific law enforcement behavior (of course, it is also possible). It is the vacant structure of law that activates all parties, but it makes them fall into the situation of being selected, so the realization of legal effect is carried out in the choice, and the law must be constantly sought for perfection under socially acceptable standards.