Model essay on defense of second instance in civil procedure 1
Respondents:
? the People's Hospital
Address:? City? Lu no.7
Due to the request of the people's hospital for personal injury compensation, we hereby put forward the following defense opinions:
1. There is no direct contractual relationship between the respondent and the respondent 1998 June 10? The second construction and installation engineering company entered into an oral contract, which was signed by? The second construction and installation engineering company is responsible for dismantling a high-voltage electric meter cabinet of the respondent. If the second construction and installation engineering company entrusts it to dismantle the high-voltage meter cabinet, there is no direct contractual relationship with the respondent.
2.？ Who should pay for the damages? The construction and installation engineering company is responsible for, firstly, according to Chinese laws and relevant judicial interpretations, and secondly, the construction and installation engineering company should be responsible for the injuries suffered by its employees within the scope of performing the contract, which are not caused by things other than the subject matter of the contract.
Third, by? The second construction and installation engineering company seriously violated the operating rules in the process of dismantling the high-voltage electric meter cabinet, and an electrician failed to pay due attention.
3. The respondent shall not be liable for damages.
According to the General Principles of the Civil Law of China, people engaged in highly dangerous operations shall be liable for compensation if they cause damage to others.
In this case, the defendant and? The second construction and installation engineering company has a contract, and the high-risk source has been legally transferred to? The second construction and installation engineering company.
? The second construction and installation engineering company has become the main body of this dangerous work. Injured in the operation. The second construction and installation engineering company did harm to its own employees during the performance of the contract, which had nothing to do with the respondent.
To sum up, the people's hospital is not suitable as the defendant, so please dismiss the plaintiff's lawsuit according to law.
I am here to convey
? City Intermediate People's Court
Respondent: People's Hospital.
Nineteen nine? April 2, 2008
Filling instructions
1. The defense reason is the main part of the defense, which usually includes the following contents: defending the facts of the case; It applies to
Defend the law.
2. Make a defense request, that is, whether the request in the plaintiff's complaint or appeal is completely rejected or partially rejected.
According to the handling of this case, I put forward my own ideas and asked the court to consider them.
Model essay on civil appeal defense II
Civil complaint
Respondent: Li Jichuan, male,1977 August 15, Han nationality, is now a freight driver of Tengfei Industrial Company in Nada Town, Danzhou City, Hainan Province, and his address is No.7 Tsinghua Road, Danzhou City, Hainan Province.
In order to clarify the facts and clarify the responsibilities, the Respondent hereby puts forward the following defense opinions on the case of personal injury compensation dispute with the Respondent in a traffic accident for the reference of the court of first instance:
1. The respondent basically has no objection to the facts stated by the respondent in the complaint, but has doubts about the determination of the date of disability. I hope that the respondent will give a reasonable explanation on the disability appraisal after more than seven months, so as to convince people by reasoning and let the court know;
Second, I have great doubts about the determination of compensation.
I basically agree with the issue of disability compensation and property loss in the victim's shop.
But generally speaking, the compensation items and amounts listed in the compensation list are too rough and simple, and it is difficult for people to determine their authenticity and legitimacy;
First, we can't identify matters that need formal vouchers, bills, opinions or expert certificates without factual and legal basis.
For example, Article 19 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases (hereinafter referred to as the Interpretation of the Supreme Law) stipulates that medical expenses shall be determined according to the receipts of medical expenses and hospitalization expenses issued by medical institutions, combined with medical records, diagnosis certificates and other relevant evidence.
Article 22 stipulates that the transportation expenses shall be calculated according to the actual expenses incurred by the victim and his necessary accompanying personnel for medical treatment or transfer to hospital for treatment.
Transportation expenses should be based on official bills; Relevant credentials shall be consistent with the place, time, times and frequency of medical treatment.
Article 24 stipulates that the nutrition fee shall be determined according to the disability of the victim and with reference to the opinions of medical institutions.
Article 26 stipulates that it shall be calculated according to the reasonable cost standard of common applicable appliances.
If there is a special need for the injury, the corresponding reasonable cost standard can be determined by referring to the opinions of the auxiliary equipment configuration organization.
The replacement cycle and compensation cycle of auxiliary appliances should be determined with reference to the opinions of the configuration organization.
Second, there are doubts about the calculation standards and methods of compensation for some projects. The respondent shall calculate the exact amount according to law, but shall not expand the claim for compensation.
Regarding the calculation of lost time, according to Article 20 of the Supreme Law, the victim should have a fixed income and be calculated according to the actual reduced income.
Reply on disputes over private lending 3
Civil defense system
A: Wang Hai, male, Han nationality, was born on xxxx, and was born in xxxxxx. He now lives in xxxxxx, and his telephone number is xxxxxx.
Respondent: Ma Lan, female, Han nationality, born on xx, xxxxxx, now lives in xxxxxx, and her telephone number is xxxxxx.
20111654381October 4th, the respondent Malan submitted a civil complaint to your institute, demanding that the respondent and the defendant xxx repay the loan of 667,000 yuan. After receiving the service from your hospital, the respondent thought that the respondent's claim could not be established at all, for the following reasons:
First, the contract is relative, and the creditor can only ask the debtor to repay the loan.
The respondent's claim to repay the loan has no basis.
On March 8, 2008, the defendant xxx borrowed money from the respondent because of the cash flow difficulties in transporting coal to the coal company. The respondent considered his relatives and lent the defendant 767,000 yuan, and the defendant xxx issued an "IOU".
On February 20, 2009, the defendant returned the loan of RMB 654.38 million to the respondent, and the respondent witnessed the fact of subsequent repayment of the IOU.
It can be seen that the parties to the loan contract in this case are: the borrower? Defendant Malan, the borrower? Defendant xxx.
According to the principle of relativity of contract, the respondent obviously only has the right to demand repayment from the defendant, and the defendant has the obligation to repay the loan to the respondent.
As an outsider, the respondent has neither the right to demand repayment nor the obligation to repay the loan.
In fact, the witness made by the respondent in the form of signature and seal is only used to prove the fact when the defendant repaid the loan and that the fact is true, effective and existing.
However, when the defendant refused to perform the repayment obligation, the respondent filed a repayment lawsuit, which obviously had no factual and legal basis and could not be established at all.
Two, the applicant's signature and seal on the iou is not a guarantee, but a witness to the fact of borrowing.
It is wrong for the defendant to list the respondent as the defendant in this case.
China's "Guarantee Law" stipulates that guarantee mainly includes five ways: guarantee, mortgage, pledge, lien and deposit.
In this case, the defendant signed the iou issued to the defendant.
The act of printing is obviously not mortgage, pledge, lien or deposit.
So who does it belong to? Promise? What about behavior? According to Article 6 of China's "Guarantee Law", guarantee 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.
? It can be seen that the so-called guarantee should be a clear agreement between the guarantor and the creditor, which is realized when the debtor fails to perform the repayment obligation.
At the same time, Article 22 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Guarantee Law of People's Republic of China (PRC) clearly stipulates the form of the establishment of the guarantee contract: the third party unilaterally issues a guarantee to the creditor in written form, and the creditor agrees; Although there is no guarantee clause in the main contract, the contract guarantee is established if it is signed or sealed by the guarantor.
But judging from this case, the defendant's "IOU" was correct. Part of it, 500,000 yuan, was returned at the end of July 2009? The signature and seal of this fact is not a clear expression of the respondent's guarantee for the 500,000 yuan lent by the respondent, nor a clear agreement of the respondent's performance of the repayment obligation or the defendant's responsibility when it fails to perform the repayment obligation, nor is it an act of the respondent issuing a guarantee to the respondent in writing or the respondent signing and sealing as a guarantor.
Therefore, the signature and seal of the respondent on the IOU is not a guarantee, but a witness to the fact that the respondent and the defendant borrowed money.
It can be seen that in this case, the respondent neither became a borrower because of borrowing from the respondent, nor became a guarantor because of providing guarantee for the respondent's loan, and there is no interest relationship in this case.
And in the process of civil litigation, as a participant in the trial of the case? Defendant? It should be a person who infringes on the plaintiff's civil rights and interests and has an interest in this case. It is obviously wrong for the respondent to list the respondent as the defendant.
Three, even if the signature and seal of the respondent is regarded as a guarantee by the respondent, the guarantee has expired, and the respondent will not bear any legal responsibility.
To say the least, even if the applicant signs and seals, it is regarded by the applicant? Promise? The guarantee period has also expired, and the respondent will be exempted from the guarantee responsibility and will not undertake the repayment obligation.
China's "Guarantee Law" stipulates that if the guarantor and the creditor have not agreed on the guarantee period, the guarantee period is 6 months from the date of the expiration of the main debt performance period.
In this case, the Respondent and the Defendant agreed that the due date of performance of 500,000 yuan was the end of July 2009, so according to the law, the guarantor's guarantee period was from the end of July 2009 to the end of June 20 10.
However, during the guarantee period, the respondent neither brought a lawsuit against the defendant nor applied for arbitration.
Paragraph, also did not require the respondent to bear the responsibility of guarantee.
According to the provisions of the guarantee law, the guarantor will be exempted from the guarantee responsibility.
So, even if the respondent's signature and seal to testify is regarded by the applicant? Promise? The respondent is not liable for repayment.
I believe that the people's court will certainly support the respondent's defense and reject the respondent's claim for repayment of the loan.
To sum up, the Respondent believes that in the loan dispute between the Respondent Malan and the Defendant xxx, the Respondent has neither made any loan behavior nor expressed any guarantee, and is not a party to this case.
At the same time, even if the act of signing and printing by the respondent is regarded by the respondent? Promise? The guarantee has also expired, and the respondent's guarantee responsibility has been exempted.
Therefore, the respondent's claim for repayment of the loan has no factual and legal basis.
Request the people's court to carefully examine, reject the respondent's claim and safeguard the respondent's legitimate rights and interests!
I am here to convey
Xxx people's court
Defendant: Wang Hai.
20xx165438+1October 29th
Attachment: 1 copy of this civil reply.