Reflect the people-centered rule of law
Insight into the first case of civil code in various places
On January 1 this year, the "Civil Code", known as the "encyclopedia of social life", was officially implemented.
Not long before, on December 29, 2020, the Supreme People’s Court announced the first batch of 7 new judicial interpretations that were compatible with the Civil Code. The content involved the time validity, property rights, marriage and family, inheritance, and construction of the Civil Code. Project contracts, labor disputes, etc., are implemented simultaneously with the Civil Code.
In the past few days, after the "Civil Code" and its supporting judicial interpretations were officially implemented, the people's courts of Beijing, Shanghai, Guangdong, Jiangxi and other places have successively concluded the "first case" after the implementation of the "Civil Code". The defendant’s life has a practical impact, and it has established behavioral rules for how the people behave in similar civil activities, which has a positive guiding effect.
Looking at the many “first cases” after the implementation of the Civil Code, we can see that the judgments behind the cases all reflect the value orientation of the Civil Code, which insists on protecting civil rights in accordance with the law as the starting point and end point, and embodies the people-centered approach. The rule of law thought of my country has taken root in our social life.
To protect the "safety overhead", the damage caused by throwing objects at high altitude shall bear civil liability according to law
On the morning of January 4, the People’s Court of Yuexiu District, Guangzhou City, Guangdong Province, opened a trial in the case of Plaintiff Yu XX v. Defendant Huang XX over liability for high-altitude throwing damage. This was also the first case in Guangzhou after the implementation of the Civil Code.
After a one-hour trial, the collegiate panel applied the "Civil Code" to pronounce the verdict in court.
On the afternoon of May 26, 2019, Yu Moumou, who was nearly 70 years old, was walking in the garden of the community. When Huang Moumou passed downstairs, Huang Moumou's children threw a bottle of mineral water on the balcony of their 35th floor house, and the water bottle fell. Beside Yu XX, he was frightened and fell down.
After calling the police, Yu was sent to the hospital for treatment.
The next day, Yu's relatives checked the surveillance with Huang and signed a confirmation letter after confirming the infringement facts.
After the agreement was signed, Huang Moumou compensated Yu Moumou 10,000 yuan.
The hospital diagnosed that Yu Moumou’s right intertrochanteric comminuted fracture and right orbital fracture cost tens of thousands of yuan in hospitalization.
According to forensic identification, Yu's injury constituted a tenth degree disability.
Since then, Yu XX filed a lawsuit with the People’s Court of Yuexiu District, demanding Huang XX compensation for medical expenses, nursing expenses, disability compensation, transportation expenses, appraisal expenses, hospital food subsidies, mental damage relief payments, etc.
After trial, the court held that according to Article 19 of the "Several Provisions of the Supreme People’s Court on the Application of the Time Validity of the Civil Code of the People’s Republic of China", before the implementation of the Civil Code, objects were thrown from buildings or from buildings. In civil disputes caused by falling objects causing damage to others, the provisions of Article 1254 of the Civil Code shall apply, so the Civil Code shall apply to this case.
After confirming the facts of infringement, the court determined that the defendant should compensate the plaintiff for medical expenses, nursing expenses, transportation expenses, hospital food subsidies, disability compensation, and appraisal expenses totaling more than 82,000 yuan in accordance with the Civil Code and related regulations, and compensation for mental damage Soothing money is 10,000 yuan.
In recent years, incidents of throwing objects and falling objects injuring people have occurred in various parts of the country, which have become "pain over cities."
In this regard, the "Civil Code" has pushed the protection of high-altitude safety to a new level, explicitly prohibiting throwing objects from buildings, and determining the civil liability for damage caused by objects thrown and falling from high altitudes, and also for property service companies Provisions are made for the safety guarantee responsibility and the investigation responsibility of the public security organs.
The implementation of the "Civil Code" plays an important role in curbing the occurrence of parabolic behavior at heights and protecting the lives and property of the people.
The referee in this case clearly expressed the saying "no" to uncivilized behaviors such as high-altitude throwing, advocating the public to be civilized and ethical, and to establish civilized and harmonious socialist core values.
In addition, the recently promulgated Criminal Law Amendment (11) stipulates that the serious circumstances of throwing objects at height constitute a crime and bear criminal responsibility.
To ensure the healthy and orderly development of cultural and sports activities, the Civil Code establishes self-contained risk rules
On January 4, the People's Court of Chaoyang District, Beijing opened a court session to hear the first case in Beijing after the implementation of the Civil Code.
In the case, the plaintiff Mr. Song and the defendant Mr. Zhou are both badminton amateurs. On April 28, 2020, the plaintiff, the defendant and others played a badminton match in the Red Scarf Park in Chaoyang District. During the game, the badminton hit by Mr. Zhou injured Song. Mr. right eye.
Mr. Song sued the Chaoyang District People’s Court on the grounds that Mr. Zhou infringed his rights to life, health, and body, and demanded that Mr. Zhou bear tort liability and compensate for medical expenses and other losses. He also believed that even if Mr. Zhou did not have gross negligence, he should Applicable fair liability sharing loss.
However, Mr. Zhou believes that Mr. Song has participated in three consecutive games before his injury, and he should know whether he is suitable to continue to participate in the games and the risks.
Moreover, there was no gravity smash, it was a flat fight, and he had no fault and should not be held responsible.
In life, there are many civil disputes caused by accidental injuries in badminton.
Some lawyers said that before the implementation of the Civil Code, the Tort Liability Law and other related judicial interpretations were generally applied to cases of injuries in cultural and sports activities, but these laws did not provide clear and specific provisions, so the treatment methods were also different. Some will be dealt with in accordance with the principle of fairness in the Tort Liability Law, and both parties will be judged to bear some responsibilities, and some will be dealt with based on the legal theory of risk.
Now, the "Civil Code" has made clear provisions on this.
Article 176 of the "Civil Code" tort liability formally established the self-contained risk rule: "Voluntary participation in cultural and sports activities with certain risks, and the victim may not request other participants to participate if they are harmed by the actions of other participants. The person shall bear tort liability; however, other participants have intentional or gross negligence in the occurrence of the damage, except.
The Chaoyang District People’s Court held that the plaintiff’s participation in badminton should be aware of the dangers of this sport, and that his voluntary participation in the competition should be deemed risky.
In accordance with the provisions of the first paragraph of Article 176 of the Civil Code and the judicial interpretation on the time validity of the Civil Code, the judgment dismissed all the plaintiff's claims.
Experts said that the self-contained risk rules established by the Civil Code ensure the enthusiasm of the people to participate in cultural and sports activities, ensure that unintentional or grossly negligent participants are not mistakenly injured by "how many compensation points", and the uniformity of judicial judgment standards, and The healthy and orderly development of cultural and sports activities is of positive significance.
Strengthen the protection of the rights and interests of financial consumers, and the Civil Code clarifies the obligations of the provider of standard terms
On January 4, the Shanghai Financial Court for the first time applied the "Civil Code" to the second instance of a financial loan contract dispute. It ruled that the lending institution has the obligation to clearly disclose the effective interest rate in the loan contract. Part of the interest rate agreed in the contract shall be refunded.
In this case, the plaintiffs Tian and Zhou and the defendant Zhongyuan Trust Co., Ltd. signed a loan contract in September 2017, stipulating that the plaintiff should borrow 6 million yuan from the defendant for a loan period of 8 years. The specific loan interest rate is subject to the "Repayment Schedule" , The average annual interest rate is 11.88%.
The repayment method is instalments, and the "Repayment Schedule" specifies the monthly repayment principal and interest amount and the remaining principal amount.
According to the contract, Tian and Zhou returned the principal and interest for 15 periods on schedule.
Subsequently, Tian and Zhou repaid in advance and actually paid more than 7.4 million yuan in principal and interest.
Tian and Zhou believed that the actual interest rate was as high as 20.94%, which was much higher than the 11.88% agreed in the contract, so they filed a lawsuit in the court, requesting Centaline Trust to refund the overcharged interest and related losses.
The court of first instance found that the "Repayment Schedule" lists the total amount of principal and interest and the remaining principal of each repayment, which are also signed and confirmed by the borrower. Therefore, there is no fact of concealing interest rates. The judgment rejected Tian and Zhou's Claims.
Tian and Zhou refused to accept and appealed to the Shanghai Financial Court.
After trial, the Shanghai Financial Court held that, according to the relevant provisions of the Civil Code, the provider of standard terms should take a reasonable approach to remind the other party to pay attention to the terms that have a major interest in it, and clarify the legal consequences of failure to perform the obligation.
In this case, the "Repayment Schedule" only stated the principal and interest of each period of repayment and the remaining principal amount, neither the actual interest rate nor the total amount of interest or its calculation method.
The "Repayment Schedule" is not sufficient to reveal the actual interest rate of the loan contract.
The first part of the loan contract stated the average annual interest rate of 11.88%, and stated that the repayment method was installment repayment.
The borrower's claim to use 11.88% as the interest rate and the remaining principal as the base to calculate interest is in line with the common understanding of ordinary rational people, and also in line with transaction habits and the principle of good faith, and should be supported.
The Shanghai Financial Court made a final judgment, annulled the original judgment, and changed the judgment to Zhongyuan Trust to return the interest collected by Tian and Zhou more than 840,000 yuan.
Regarding this case, Shen Zhuying, the head of the trial team of the Shanghai Financial Court, said that in recent years, my country's retail loan business has grown rapidly. In 2019, the scale of consumer loans alone exceeded 13 trillion yuan.
The borrowers of retail loans are all natural persons, mostly ordinary consumers and small and micro business owners.
In practice, some lending institutions take advantage of the asymmetry in professional knowledge with borrowers to cover up higher real interest rates by displaying only lower surface interest rates.
In recent years, my country’s efforts to protect the rights and interests of financial consumers have continued to increase. In accordance with Article 496 of the Civil Code, this case determined that the lender has the obligation to clearly disclose the actual interest rate. Financial institutions play a positive role in implementing financial service real economy policy requirements.
Protect the ecological environment and initiate civil public interest lawsuits against ecological pollution
On January 4, the Jiangxi Provincial Procuratorate designated a chemical company’s environmental pollution civil public interest litigation case under the jurisdiction of the Fuliang County Procuratorate to be heard in the Fuliang County Court and sentenced in court. The court applied the Civil Code to support all the prosecutors’ claims in accordance with the law.
From March to July 2018, Wu Moumin, the production manager of a chemical company, handed over the sodium sulfate waste produced by the company to Wu Mouliang, who is not qualified for hazardous waste disposal. Wu Mouliang hired Li Mouxian to dispose of more than 1,124 tons of sulfuric acid. The sodium waste liquid was transported to Bajiaojing in Shouan Town of Fuliang County and dumped in the mountains of Dongkou Village in Xianghu Town, causing soil and surface water pollution, hindering the drinking and water use of more than 1,000 local villagers, and seriously damaging public interests.
According to the appraisal, the ecological environment restoration cost of the two contaminated plots was 2.168 million yuan, the environmental functional loss cost was more than 57,000 yuan, the emergency treatment cost was more than 532,000 yuan, and the inspection and appraisal cost was more than 95,000 yuan.
The Fuliang County Procuratorate held that in handling the criminal case of Wu Moumin and others suspected of environmental pollution, the criminal responsibility of the above-mentioned personnel alone is not enough to form severe punishments for illegal and criminal acts and cannot effectively restore the ecological environment.
Article 1232 of the "Civil Code" stipulates that "if the infringer violates the law and deliberately pollutes the environment or damages the ecology and causes serious consequences, the infringer shall have the right to request corresponding punitive compensation."
Wu's behavior is an official act. In order to restore the ecological environment to the greatest extent, he should be investigated for civil liability for environmental infringement of a chemical company where he belongs.
In the end, the Fuliang County People’s Court ruled that the defendant, a chemical company, should pay more than 2.85 million yuan in compensation for ecological environment restoration, environmental function loss, emergency treatment, testing, and identification, and another 170,000 yuan punitive damages for environmental pollution. The chemical company apologized to the public on the national news media for its environmental pollution.
The chemical company is also fully aware of the serious damage caused by the dumping to the ecological environment, sincerely admits its mistakes and regrets, expressed its acceptance in court and punished, and is willing to bear all the litigation requests filed by the prosecutors.
In-depth study of the "instructions" for civil rights of citizens, and consciously implement them in specific tasks
Party and state agencies at all levels should take the lead in propagating, advancing, and guaranteeing the implementation of the "Civil Code", strengthening inspection and supervision, and ensuring that the "Civil Code" is fully and effectively implemented.
Disciplinary inspection and supervision cadres should fully realize the significance of the promulgation of the Civil Code, implement the people-centered concept in discipline enforcement, enhance the awareness of the rule of law, protect the rights of citizens, and consciously promote the spirit of the Civil Code in the discipline inspection and supervision work root.
"Disciplinary inspection and supervision agencies must perform their functions and exercise their powers in accordance with the law, protect citizens' civil rights from infringement, and promote lawful and orderly civil relations." Zhao Guoqiang, a cadre of the Chaoyang District Commission for Discipline Inspection and Supervision, said, for example, according to Article 25 of the Supervision Law, the If the seized property and documents are found to be irrelevant to the case, the seizure or seizure shall be lifted and returned within three days after the investigation.
These provisions are in line with the provisions of Article 266 of the "Civil Code" that "private persons have ownership of their legal income, houses, daily necessities, production tools, raw materials and other real and movable properties".
In practice, some duty violations and duty crimes are often intertwined with civil actions.
"The "Civil Code" provides a legal basis for the disciplinary inspection and supervision organs to carry out the review and investigation work." Li Yu, a cadre of the Commission for Discipline Inspection of Hailing District, Taizhou City, Jiangsu Province, said that in recent years, he has often encountered high-ranking investigators in the process of disciplinary enforcement. Interest lending issues.
In this regard, you can refer to Article 5 of the "Civil Code" "Civil entities engaged in civil activities shall follow the principle of voluntariness and establish, change, and terminate civil legal relations according to their own will" and Article 680 "Prohibition of usury and borrowing The interest rate must not violate the relevant national regulations" and other content, investigate the violations of discipline and law, and maintain a fair competitive market environment.
"The realization of civil rights depends on the standardized operation of public power." Sun Lin, a cadre of the Commission for Discipline Inspection of Rushan City, Shandong Province, stated that Article 185 of the Civil Code stipulates that intentional infringement of the intellectual property rights of others is serious. The infringed person has the right to request corresponding punitive damages.
In this regard, Sun Lin believes that this is conducive to accelerating the promotion of intellectual property protection, will provide vitality for the development of new business formats and new fields, and provide an innovative protection mechanism for industrial transformation and upgrading.
Disciplinary inspection and supervision organs should be based on "supervision and re-supervision", supervise and inspect whether there are problems such as discounts in the implementation of policy measures in supporting entrepreneurship and innovation, and provide strong disciplinary guarantees for creating a good policy environment.
(Our reporter Cheng Wei)