Interpretation of civil code by military lawyers these two typical cases are closely related to the protection of civil rights and interests of officers and soldiers
2022-05-23
Let the civil code enter the hearts of officers and soldiers On May 28, 2020, the third session of the 13th National People's Congress deliberated and adopted the civil code of the people's Republic of China, marking China's formal entry into the "era of civil code". This is the first law named after the "code" since the founding of new China. It is an encyclopedia of social life and a code for the protection of people's civil rights. On the second anniversary of the promulgation of the civil code, we selected typical cases closely related to the maintenance of the civil rights and interests of the army and officers and soldiers from the service activities of solving difficult legal issues carried out by various troops, and organized military lawyers to interpret them for reference by our comrades in arms. Combined with the in-depth study of the civil code, all troops should implement the strategy of running the army according to law, educate and guide officers and soldiers to strengthen the awareness of the rule of law, improve the quality of the rule of law, and create a strong atmosphere of respecting and abiding by the law. The Air Force Command Academy carried out a series of activities to publicize the civil code. Photo by Shi Xiaobing How should children claim compensation for injuries at school ■ Xu HONGSUN Xiaoyu Officer and soldier consultation Lingling, the 10-year-old daughter of Xiao Wang, an officer of a certain unit, is studying in a primary school in her hometown. One day, while cleaning at school, Lingling was hit in the head by a football kicked by her classmates. Then she went to the school infirmary for treatment, but the infirmary did not make any treatment, and the school did not inform her parents of the relevant situation. The next day, Lingling went to the local hospital with Xiao Wang's wife for examination because of the unbearable pain in the injured part. She was diagnosed with atlantoaxial subluxation and was finally hospitalized for 40 days, costing tens of thousands of yuan in medical expenses. Xiao Wang's wife negotiated compensation with strong parents and the school. Strong parents only agreed to compensate 5000 yuan, while the school refused to bear responsibility. Xiao Wang consulted the "lawyer online" column of qiangjun.com. Should Zhuangzhuang and the school be liable for compensation? How should I protect my rights? Lawyer interpretation The personal safety of minors, especially military children, is a common concern of society and military families. If their children suffer personal injury in school, the parents of officers and soldiers should pay attention to distinguishing the responsibilities of all parties and safeguard their own rights and interests according to law. In this case, Lingling was injured when she was hit by a strong football in the school, which belongs to the tort liability dispute adjusted by the civil code. The problems to be grasped in the handling are who should bear the liability for compensation and what losses can be claimed for compensation. Article 1165 of the Civil Code stipulates that the infringer shall be liable for damage to the rights and interests of others due to his tort. Zhuang Zhuang injured Lingling by playing football in school, because Zhuang Zhuang and Lingling are minors only 10 years old. In order to limit the civil capacity, according to Article 1188 of the civil code, "if the person with limited civil capacity causes damage to others, the guardian shall bear tort liability". Xiao Wang has the right to require Zhuang Zhuang's guardian, that is, his parents, to bear the liability for damage compensation. In addition, should the school bear tort liability? Article 1200 of the Civil Code stipulates that if a person with limited capacity for civil conduct suffers personal injury during his study and life in a school or other educational institution, and the school or other educational institution fails to perform its duties of education and management, it shall bear tort liability. This article applies to the "principle of fault liability", that is, if the school has a fault in education and management, it shall bear the liability equivalent to the degree of fault. In this case, the school has the obligation to protect Lingling's personal safety while in school. When she is injured, she should timely rescue and inform her guardian. However, the school infirmary neither treated Lingling after her injury nor reminded her to go to the hospital. It is obvious that there is a certain fault. Xiao Wang has the right to ask the school to bear the liability for damages. In view of this, Zhuang Zhuang and the school have faults, and the degree of fault of both parties determines their liability for damages. With regard to the scope of compensation, article 1179 of the Civil Code stipulates that if a person causes personal damage to another person, he shall compensate for the reasonable expenses for treatment and rehabilitation, such as medical expenses, nursing expenses, transportation expenses, nutrition expenses and hospitalization food subsidies, as well as the income reduced due to missing work. Among them, the medical expenses are determined according to the collection vouchers such as medical expenses and hospitalization expenses issued by the hospital, combined with relevant evidence such as medical records and diagnostic certificates; The nursing fee is determined according to the income status of nurses, the number of nurses and the nursing period; The transportation expenses shall be calculated according to the actual expenses incurred by the victim and his necessary caregivers due to medical treatment or transfer to hospital for treatment; The nutrition fee shall be determined according to the disability of the victim and with reference to the opinions of medical institutions; The hospitalization food allowance is usually calculated with reference to the travel food allowance standard and the actual length of hospital stay of general staff of local state organs. In this case, Xiao Wang and his wife can further communicate with strong parents and schools and negotiate compensation in accordance with the relevant provisions of the civil code; If no agreement can be reached, it may request the local people's mediation committee to organize mediation or bring a lawsuit to the people's court. It is specially reminded that military dependents as parents should strengthen safety education and guidance for military babies at ordinary times. If military babies unfortunately suffer personal damage, they should be sent to hospital in time, and pay attention to retaining relevant medical expenses, transportation expenses and other bills to protect their own rights and interests according to law. (author unit: petition and legal service office of the Political Work Department of the rocket Army) The duty detachment of the Hubei Armed Police Corps invited resident lawyers to enter the military camp to carry out law popularization activities. Xie Dingan "Free space" cannot be cashed. Can you apply for check-out ■ Zheng Wei Officer and soldier consultation In October 2020, Sergeant Xiao Li of a certain unit was going to buy a house in his hometown. During the publicity and introduction of a real estate salesperson, he orally promised to "buy the top floor and send it to the top floor to expand the space", that is, the top floor residents can get through to the top floor and obtain the available space through capping and pouring. Xiao Li is very satisfied with this. Although the house purchase contract did not specify the free space, Xiao Li did not care. He signed a house purchase contract with the developer and paid the down payment to buy a top-level house. After the formalities are completed, the developer proposes to sign a supplementary agreement with Xiao Li, which stipulates that Xiao Li entrusts the developer to carry out the expansion space transformation of the house, and attach the expansion space map after the transformation. More than a year later, the owners who purchased the top-level houses in the community and completed the transformation successively received the notice from the urban management department that the expansion space of the top floor is an illegal building and should be demolished within a time limit. When Xiao Li bought a house, he mainly focused on the expansion space of the top floor. Now he can't transform the house due to illegal construction. He is disappointed and doesn't want the house anymore. Xiao Li consulted through the "lawyer online" column of qiangjun.com: is this situation of developers a fraud? Can you claim to check out? Lawyer interpretation Article 148 of the Civil Code stipulates that if one party fraudulently causes the other party to commit a civil legal act against its true intention, the deceived party has the right to request the people's court or arbitration institution to revoke it. To constitute fraud in the civil code, the perpetrator needs to have the intention of fraud, and the other party falls into wrong judgment because of the perpetrator's fraud, and makes an expression of intention based on this wrong judgment. Specific to this case, can the developer be identified as fraud in the civil code? In the process of commercial housing sales, it is very common for developers to verbally promise to buy a house to "send it to the garden" and "send it to the attic". In judicial practice, the court generally believes that it does not constitute civil fraud, because the purchase area agreed in the purchase contract signed by both parties does not include the promised space. At the same time, Xiao Li also signed a supplementary agreement with the developer, agreeing that the expansion space can be obtained only after transformation. It can be seen that the developer did not deliberately hide the property right area of the house for sale, nor did he hide the source of expansion space. As a person with full capacity for civil conduct, Xiao Li, the buyer, should carefully examine the factors such as the area and house type of the house when buying the house, and should also know the source of expanding the space. Therefore, the behavior of the developer can not be recognized as fraud in the civil code, and Xiao Li can not cancel the house purchase contract and return the house according to Article 148 of the civil code. When officers and soldiers buy houses, they should rationally treat the commitments of developers such as "giving away and expanding space". According to Article 143 of the civil code, civil legal acts must "not violate the mandatory provisions of laws and administrative regulations, public order and good customs", otherwise they are invalid. The construction law and the relevant provisions on the use safety management of multi place houses have made it clear for the construction of construction projects. If the developer and the owner privately agree to construct on the buildings that have passed the acceptance, and then change the main body or load-bearing structure of the building, it may be an invalid civil legal act due to the violation of relevant laws and regulations. In practice, the use of "gift area" and "gift space" for sales publicity is a common means for developers, and the so-called "gift" of developers is likely to occupy the owner's common space, or without the approval of the planning department, which mostly belongs to illegal operation. In order to avoid risks, developers often ask buyers to sign "entrusted transformation agreement" to transform the illegal transformation into the behavior of buyers at their own risk, which eventually leads to buyers being asked to dismantle the transformation space and restore the original state. I would like to remind the majority of officers and soldiers that when buying a house, they should pay attention to whether the developer has obtained the construction permit of construction project, the pre-sale permit of commercial housing and other qualifications, and pay careful attention to the contents listed in the house purchase contract. For the area promised by the developer, it is best to write it into the house purchase contract. When the donated area cannot be obtained, the developer can be required to bear the liability for breach of contract. If the donated area cannot be included in the house purchase contract, it needs to be carefully considered whether to continue to purchase. (author unit: petition and legal service office of the Political Work Department of the air force) A Red Army Corps of the Xinjiang Military Region, which is training on the Karakoram plateau, organized officers and soldiers to learn about the civil code and improve their legal literacy. Sun Jianan (outlook new era)
Edit：Luo yu Responsible editor：Jia jia
Source：81.cn
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