Classic Case_Classic Case_SHANDONG DADIREN LAW FIRM

ENG 中文



SEARCH

Confirm

Cancel



Check category 



Classic Case

News Center

Strive for priority

Industry News

News

Investment immigration

Academic Research

Lawyer style

Professional perception

Published by the people of the earth

Two sets of cases of domestic violence

Attorney Teng Xiaoting, member of the Communist Party of China, Bachelor of Laws from Shandong University, lawyer of Zibo TV Science and Education Channel, Luzhong Morning News Lawyer Group, has written many articles for the rights protection line of Zibo Evening News Women’s Federation. Lawyer Teng Xiaoting has a solid foundation in legal theory, strong professional ability, quick thinking, and rich experience in litigation practice. In the process of work, he has cultivated a serious, patient, rigorous, meticulous, honest and trustworthy work style, and has a noble legal practice ethics. Lawyer Teng Xiaoting enthusiastically participates in social law popularization activities, answering public inquiries through television, radio, newspapers and other media, and publicizing the legal system to the general public, achieving good social effects. About domestic violence Brief introduction of 　　 case: Xiao Zhang married her husband Wang Gang in 2001, and the relationship between the two is fairly good. In 2003, Xiao Zhang gave birth to a daughter. Wang Gang was the only child in the family. His family and Wang Gang wanted to give birth to a boy. Since Xiao Zhang gave birth, Wang Gang has ignored him. He often drank and abused Xiao Zhang when he returned home. . Xiao Zhang felt fear for Wang Gang, which caused a lot of mental pressure on himself. Since giving birth, Xiao Zhang's body has often been blue and purple. The most serious thing was that in early 2007, after Wang Gang was drunk, he cut Xiao Zhang's leg with a kitchen knife. Xiao Zhang was hospitalized for 32 days and was discharged after 19 stitches. After being discharged from the hospital, Xiao Zhang approached a lawyer for advice on how to get rid of his marriage. Lawyer's answer: Xiao Zhang’s husband Wang Gang’s behavior is typical of domestic violence. Domestic violence refers to the act of violence by one of the family members against the other. The forms include corporal punishment such as beating, kneeling, binding, and detention, as well as mental abuse such as threats, intimidation, and insults. Domestic violence directly affects the victim's body, causing the victim to feel pain physically or mentally, and impairing his physical health and personal dignity. Domestic violence occurs among family members who are related by blood, marriage, or adoption, such as husband to wife, parents to children, adult children to parents, etc. However, it is most common for women to suffer violence from their husbands. The harm is also the greatest, and domestic violence especially refers to a husband's violence against his wife. Domestic violence can cause death, serious injury, minor injury, physical pain or mental pain. From the appalling case of throwing a wife from a high-rise building, to a brutal beating that caused the wife to have a swollen nose and swollen body, to a few punches and slaps that caused the wife to suffer from mental pain. After domestic violence occurs, who should the victim ask for help? In order to protect their personal rights, the victim must dare to ask for help from outsiders. One is to ask for help from relatives and friends, such as elders, neighbors with good relations. Dissuaded by relatives and friends, criticizing the perpetrator; Second, ask the village (resident) committee and the unit for help. Village (resident) committees all have mediation organizations, which are conducted by mediation organizations, grassroots cadres, and unit leaders to put pressure on the perpetrators. The third is to seek help from women’s organizations and trade unions. You can seek help from the Women’s Federation and the Women’s Congress of the village (residential), the women’s committee of the unit, and the trade union. The organization will come forward to advise the perpetrator, coordinate and promote the relevant departments to handle the case, and if necessary, you can also support the victim to file a lawsuit; the fourth is to The public security organ asks for help. The personal rights of citizens are protected by national laws, and public security organs have the duty to protect the personal safety of citizens. The victim can directly report the crime to the public security organ, or call "110" for help. Public security personnel will be present to stop the violence, and if necessary, the perpetrator will be warned, fined, and detained. What kind of responsibility should the perpetrator of domestic violence bear? In criminal terms, if the perpetrator causes minor injuries, serious injuries, or death to family members, which constitutes a crime, the judicial organ shall hold him accountable for criminal responsibility. If the victim has evidence that caused minor injuries, the victim can directly file a lawsuit with the people’s court to accuse the perpetrator of injury, and the victim must provide forensic identification and proof of violence. If serious injury or death is caused, the public security organ shall conduct inv

Click to see more 

24

2010-05

Six years of litigation was settled at once

 Time of issue: : 2010-05--24

Lawyer Wang Bing, Bachelor of Testing from Northwestern Polytechnical University, Bachelor of Laws from Shandong University of Political Science and Law, CET-4 in English. Business expertise: Lawyer Wang has nearly ten years of work experience as a lawyer. He has successively handled nearly 1,000 criminal defense, real estate disputes, traffic accidents, industrial and commercial insurance cases, and served as a permanent role in more than a dozen units such as Zibo Water Resources Management Office and Linzi Urban Construction and Development Company. Legal consultant, qualified to engage in the legal business of shareholding system reform, is a lawyer of "Luzhong Morning News", a member of "Zibo Evening News" legal aid team, and a part-time teacher of Zibo Vocational College. Xiao Wang never imagined that a lawsuit that had been delayed for six years would be settled in the morning. In 2002, Xiao Wang, who had just graduated from university, reached an employment agreement with A Sports Goods Company in the talent market to specifically do business sales in the company. During the internship period, the manager arranged for him to learn business knowledge first. On the morning of August 28, 2002, on the 28th day when Xiao Wang went to work, Xiao Wang, who was sitting in the office on the second floor of the company studying, suddenly heard someone shouting downstairs, "Xiao Wang, open the elevator to help me move the liquefied gas tank to the third floor. "Isn't this Aunt Zhang from the company cafeteria? Xiao Wang didn't even think about it, so he ran to the third floor and opened the freight elevator door and stepped in. He didn't expect the elevator to go up on the first floor. He suddenly fell to the first floor. In the elevator shaft, Xiao Wang lost consciousness. The manager of the company heard that Xiao Wang was injured and hurried to the hospital. He asked the best doctor to perform the operation immediately and paid all the medical expenses. However, Xiao Wang still has a disability, and the two parties have never reached an agreement on the amount of compensation after many mediations. The long road to litigation begins here: 1. I have gone through a long work injury procedure for three years. Xiaowang thought that he was injured at the work place or during work and submitted an application for work injury certification to the local labor department, but the labor administrative department refused to recognize the work injury on the grounds of “injury caused by non-work reasons”. In 2003, Xiao Wang applied for a work-related injury again, but was denied again! Through administrative reconsideration and administrative litigation procedures, the court revoked the labor bureau’s decision not to recognize work-related injuries. In 2004, Xiao Wang applied for a work injury again. The labor department conducted detailed investigations and found out: "Aunt Zhang, an employee of Company A, put the liquefied gas tank (privately owned) on the elevator on the first floor, and asked Xiao Wang to open the elevator to transport the gas tank on the first floor. On the third floor, Xiao Wang did not hear him in the office on the third floor. Xiao Wang ran from the second floor to the third floor, opened the elevator door with the key, stepped down and caused serious injury. Xiao Wang was injured by non-work reasons, so he again decided not to Work injury is recognized. Three work injury applications are not recognized for three times! After consulting with a lawyer, Xiao Wang brought Company A and Aunt Zhang to court on the grounds of employee damage compensation. Second, the twists and turns of the first-instance appraisal cited disputes. In 2005, the court commissioned a disability appraisal with the consent of the plaintiff and the defendant. The appraisal concluded that the disability was Grade 8 disability. The plaintiff Xiao Wang refused to accept it and applied for appraisal again, and was later appraised as Grade 5 disability by another appraisal agency. It formed a situation where the plaintiff advocated the five-level defendant and the eighth-level defendant back and forth. Finally in early 2008, the court of first instance ruled that the defendant Company A should compensate Xiao Wang based on the conclusion of the fifth-degree disability. Since Xiao Wang was also partially responsible in the accident, it ruled that the defendant should be liable for 70% of the compensation. Defendant Company A appealed against it. 3. Humanized second-instance mediation to reconcile accumulating grievances In the second instance, Company A entrusted me as its agent to participate in the lawsuit. After careful analysis of the case, it was learned that Company A was willing to make reasonable compensation. The prolonged delay in this case was due to the lack of reasonable communication between the two sides, mutual suspicion and secret rivalry, which led to more and more anger, and finally formed an irre

24

2010-05

Who will be responsible for serial car accidents?

 Time of issue: : 2010-05--24

Lawyer Yin Guangyu, graduated from Southwest University of Political Science and Law, is good at handling road traffic accident disputes, civil and commercial contract disputes, and company equity disputes. He has a solid foundation in law theory and rich practice experience. Since his practice, he has handled a large number of difficult cases and safeguarded the legitimate rights and interests of the parties. Guest host of the column "Fa is by Your Side" on the News Channel of Zibo People's Broadcasting Station. One evening in July 2008, it was raining lightly. Sun crossed the road with an umbrella. When Sun reached the middle of the road, Li drove a motor tricycle from north to south and knocked Sun over. Ground. Seeing that Li had hit someone, he drove away in a panic. A moment later, Han drove an Audi A6 and knocked out Sun, who had been knocked to the ground. Han immediately stopped and dialed 122 to call the police and 120 emergency number, but Sun died after being sent to the hospital. On the second day, the tricycle driver Li took the initiative to surrender. After an autopsy by the public security department, Sun was killed by the impact, but the death was the first few impacts that could not be identified. A few days later, the traffic police issued two accident certifications, respectively acknowledging that Li and Han were fully responsible for the accident. In this road traffic accident, Sun was hit by two motor vehicles successively, which led to the consequences of death. So who should Li or Han bear civil responsibility for Sun’s death, and how should they bear it? In road traffic accidents The person who caused the death of one person and was fully responsible has constituted a traffic accident crime. In this accident, what kind of criminal responsibility should Li and Han bear? On the issue of civil liability, Li and Han should be jointly and severally liable for Sun’s death. In civil liability, joint liability is a special form of liability, which is based on the express provisions of the law or the agreement of the parties. For example, joint tort liability and joint guarantee liability are typical forms of joint liability. Specifically in this incident, the actions of Li and Han are a form of joint tort, that is, a tort in which several actors have no common fault but their actions are directly combined to cause the same damage result. In the legal sense, if several infringements are directly combined to cause the same damage consequence, they shall bear joint and several liability. The indirect combination of several infringements is based on share liability, such as the infringement of a person who caused a high-voltage electric shock on an ultra-high illegal building. In judicial practice, the main differences between direct and indirect combination are: 1. Whether each actor has active injuring behavior 2. Its damage result is inseparable; 3. Each actor’s behavior and damage result have direct Causal relationship. In this case, both Li and Han had injurious acts, and the two acts were inseparable from the result of Sun's death, and there is a direct causal relationship between the two acts and Sun's death. Therefore, the direct combination of Li and Han’s infringements in this case resulted in Sun’s death, which is a joint tort and should bear joint and several civil liability for compensation. There are more stringent requirements for the assumption of criminal and civil liabilities, and there must be solid and sufficient evidence to prove that the actions of criminals have caused the consequences of damage. In this case, if Li’s first collision led to Sun’s death, then Han’s collision was only Sun’s body, and Han should not be held criminally liable; on the contrary, if it was Han’s second The collision resulted in Sun's death, so Li just injured Sun, and it does not mean that he should be held criminally responsible. Under the premise that it is impossible to find out whose negligent behavior caused Sun's death, Li and Han will not be held criminally responsible because of insufficient evidence.

24

2010-05

The establishment of parking spaces in residential areas must be legal

 Time of issue: : 2010-05--24

Lawyer Xu Yiyou: graduated from Shandong University of Technology with a major in education, graduated from Shandong University with a bachelor's degree in law and a bachelor's degree in law. Business expertise: labor dispute cases, marriage and family cases, personal injury compensation, contract disputes, company legal affairs, non-litigation legal affairs. With the continuous improvement of residents' consumption levels, automobiles, as a daily consumer product, have gradually entered more and more households. Suddenly, the community is full of cars, which brings a series of problems: there are too many cars. Random parking, destruction of green space, etc. So many communities solve the above problems by expanding parking spaces, charging fees, and setting up access control, but in the implementation process because they are not familiar with the law and operate in violation of regulations, conflicts between all parties have been intensified. In September 2009, the neighborhood committee of the ×× community and the property committee jointly issued a document, claiming to solve the problems of road blockage, fire protection and traffic safety in the community, and the destruction of lawn greening. In accordance with the "Shandong Property Management Regulations", it was decided to convert part of the green space into parking spaces, and to charge vehicles for occupying public roads and sites. At the same time, an access control is set up, and vehicles that do not pay parking fees will be prohibited from entering the community. In the above cases, there are a series of illegal problems: 1. The neighborhood committees and owners' committees of the community have no right to decide on fees. According to the "Organization Law of Urban Residents Committees", the residents committees are only grassroots mass autonomous organizations for self-management, self-education, and self-service of residents, and they do not stipulate that they have the right to independently determine fees. The owners committee is an organization that is elected by the owners in the property management area in accordance with the rules of the owners’ meeting and represents the interests of the owners. The owners' committee implements the decisions made by the owners' assembly and has no right to decide on fees without authorization by the owners' assembly. 2. The procedures for expanding parking spaces and charging fees do not comply with legal requirements. Article 51 of the “Property Management Regulations of Shandong Province” stipulates that those who occupy the roads or other venues shared by the owners in the property management area to park cars shall pay the parking space usage fee. This is the physical basis. According to the "Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Laws in Trial of Dispute Cases of Building Division Ownership" and the provisions of the "Property Law", the occupation of the parking spaces on the roads or other places shared by the owners for parking cars belongs to the owners. Changing the use of the shared part, using the shared part for business activities, and disposing of the shared part should be jointly decided by the owners, and requires the consent of the owners whose exclusive part occupies more than half of the total building area and more than half of the total number of owners. In addition to the above, you need to report to the price department for approval before you have the right to charge. Only decisions made through such procedures comply with the law. 3. Occupation of greening needs to be approved by relevant departments. According to the provisions of the Property Law, for the green space in the community, the principle of ownership by the owners is the principle, with the exception of the ownership of a single owner. Changes to the use of green space must be decided by the owners' assembly. At the same time, according to Article 56 of the "Land Administration Law", "Any change in the use of land in an urban planning area shall be approved by the relevant urban planning administrative department before submitting for approval." In addition, Article 19 of the "Urban Greening Regulations" stipulates that "no unit or individual may arbitrarily change the nature of urban greening planning land or destroy the topography, landform, water body and vegetation of the greening planned land." Therefore, after the owners' assembly passes the resolution, it needs to be reported to the urban planning and gardening department for approval. The problem of parking spaces in the community is related to the vital interests of the owners and must be resolved through legal means to prevent intensification of conflicts between all parties.

鲁ICP备08102940号-1