20 17 National Judicial Examination (Volume III) Basic Intensive Examination 10

1, according to relevant theories of civil law, which of the following options belongs to the right of formation? ( )

A. Li inherited a house from his father, and later Li sold it because he was in debt.

B. Zhang and Wang signed a contract to buy and sell computers. Since then, Zhang failed to deliver the computer on time, and Wang refused to pay.

C. Liu entrusted to buy women's clothes on his behalf. Later, Wu Mou saw that the menswear produced by Hongsheng Garment Factory was good, so he signed a contract with Hongsheng Garment Factory to buy and sell menswear. After Liu knew it, he signed the contract.

D Fenghua Company was unable to perform the processing contract with Vida Company due to the failure of machinery and equipment, so it advocated changing the contract with Vida Company.

Correct answer: C.

Answer analysis: this question examines the right to form. The right of formation is the right of the obligee to change the legal relationship between himself and others according to his own unilateral meaning. Option a is dominant; Option b belongs to the right of defense; In option D, Fenghua Company unilaterally advocates changing the contract and cannot directly change the legal relationship.

2. Which of the following options is a civil legal act? ( )

10 year old students go to the supermarket to buy laptops every week.

B. Regal Lin signed a written donation contract to donate his property in a certain place to Sunshine Hope Primary School.

C. The vendor Wang sold his own radish as ginseng to a large supermarket.

D. Hua and Yang signed an agreement to buy and sell a batch of guns and ammunition.

Correct answer: b

Answer analysis: this question examines civil legal acts. Article 55 of the General Principles of Civil Law stipulates that a civil juristic act shall meet the following conditions: (1) The actor has corresponding capacity for civil conduct; (2) the meaning is true; (3) It does not violate laws or public interests.

Option A does not belong, because the actor lacks the corresponding capacity for civil conduct.

Option c does not belong because it belongs to forgery.

Option D doesn't belong, which is against the law.

Li Shan sold a batch of cows to Wei Wu. Both parties agreed that Li Shan would deliver the cattle to the cattle farm in Wei Wu on June 4th, 2009 +065438+, and Wei Wu would pay Li Shan after 1 month. 1 month later, Wei Wu didn't get paid, and Li Shan was too busy with other things. 20 1 1 On July 4th, Li Shan was injured in a car accident and became a vegetable. His relatives had an argument about who should be his guardian. It was not until August 4th, 20 1 1 that Li Huacai was appointed as the guardian of Li Shan. 20 12 On February 3rd, when Li Hua cleaned up Li Shan's property, he found that the debt had not been recovered, so he claimed his rights, and he was unwilling to repay it because he thought that the statute of limitations had expired. Then, according to the law, how long is the statute of limitations for Li Shan to ask Wei Wu to repay the debt? ( )

A.2010 65438+February 4th

B.201165438+February 4th

C.2012 65438+1October 4th

D.2065438+4 February 2002

Correct answer: C.

Answer analysis: this question examines the suspension of the limitation of action. During the last six months of the limitation of action, if the obligee is unable to exercise his rights due to other obstacles, the limitation of action shall be suspended. If the limitation of action is suspended, the time elapsed during the period of suspension of the cause shall not be counted in the limitation period, and the limitation of action shall continue to be counted after the termination of the cause. The continued calculation shall be based on the remaining limitation period.

4.20 1 1 At the end of the year, Zeng bought a pre-sale house from the developer Shunda Company in order to get married, and paid 5% of the house price. In order to prevent developers from reselling houses again, they went to the relevant departments for advance notice registration on June 0, 20 12+65438. On March 1 day, the house was completed, and the real estate license could be applied for, but the company was too busy to go to the real estate department for registration. /kloc-In August, Shunda Company sold the house to Xue Mou, who didn't know it, and registered the house. On August 4, Xue moved into the house. Which of the following statements is true? ( )

A. because the advance notice registration has been handled, the behavior of the developer buying and selling the house without authorization is invalid.

B due to the advance notice registration, the ownership of the house cannot be obtained according to the bona fide acquisition system.

C Zeng's advance notice registration has expired, and he has obtained the ownership of the house.

D suppose that houses are damaged or lost due to lightning and fire on August 3rd, and the risk shall be borne by Xue.

Correct answer: C.

Answer analysis: this question is notified to register for the exam. Article 20 of the Property Law stipulates that when the parties sign an agreement on buying and selling houses or other real estate rights, they may apply to the registration authority for advance notice registration in order to ensure the realization of future real rights. After the advance notice registration, if the obligee without advance notice registration agrees to dispose of the real estate, the real right effect will not occur. After the advance notice registration, the creditor's rights are extinguished or the application for registration is not made within three months from the date when the real estate registration can be carried out, and the advance notice registration is invalid.

Option a is wrong and option c is correct. The advance notice registration, which was carried out on 1 June+10/October 1 day, was ready for real estate registration by March1year, but it could not be handled for other reasons. By August of 1 year, three months had passed. Therefore, the advance notice registration is invalid, and the real right effect occurs when the developer disposes of the real estate.

Option b is wrong. Can Xue obtained the ownership, but not based on goodwill, but based on the sales contract, because at this time the developer has the complete right to dispose of the house.

Option d is wrong. Article 142 of the Contract Law stipulates that the risk of damage or loss of the subject matter shall be borne by the seller before delivery and by the buyer after delivery, unless otherwise stipulated by law or agreed by the parties. Accordingly, the risk of damage or loss of the house is transferred from the date of delivery, and the house has not been delivered to Xue Mou on August 3, and the risk should be borne by Shunda Company.

5. In which of the following circumstances can Wu Mou claim ownership in good faith? ( )

A. Tang signed a trial sale contract with and handed over a cow for trial planting. Chen Mou sold it to an unwitting third person, Wu Mou, in his own name and delivered the goods.

B. Qian saved a set of exquisite ancient books for Sun, and his friend celebrated his birthday. Qianmou lied that the stamps were purchased with his own savings, and asked Wu Mou to deliver them.

C. Ma borrowed a set of "Up and Down Five Thousand Years" from the library, blotted out the logo of the library and sold it to an unsuspecting delivery at a reasonable price.

D. Deng found the lost wallet, sold it to the unsuspecting at 100 yuan, and delivered it.

Correct answer: C.

Answer analysis: this question examines the system of bona fide acquisition. According to Article 1 of the Property Law, acquisition in good faith shall meet the following conditions: (1) The transferor is a person who has no right to dispose of it; (2) The transferee is in good faith when accepting the real estate or chattel; (3) transferring the subject matter between the transferor and the transferee at a reasonable price; (4) The transferred immovable property or movable property that should be registered according to law has been registered, and the transferred immovable property or movable property that does not need to be registered has been delivered to the transferee.

Option a is wrong. According to the provisions of Article 17 1 of the Contract Law, if Chen Mou disposes of the subject matter of the sale contract on a trial basis, it shall be deemed as agreeing to purchase the subject matter. Therefore, he has the right to dispose of cattle. Therefore, Wu Mou's ownership of cattle is based on the sales contract, not the bona fide acquisition system.

Option b is wrong. Money gave Sun's things for free, but it was not accepted at a reasonable price, so it could not be obtained in good faith.

Option d is wrong. According to article 107 of the Property Law, the system of bona fide acquisition is not applicable to finding lost property. Therefore, Wu Mou can't advocate bona fide acquisition of wallet ownership.

6.20 1 1, 12, 1 day, "Hong Xin" property management company provided property services for "Fenghua" community. On April 5, 20 12, the owner and the property management company had a dispute, and the two sides argued endlessly and finally appealed to the court for settlement. Which of the following requirements put forward by the owner can be supported by the court? ( )

A. As stipulated in the property contract, the property company only collects environmental protection and cleaning fees, and later the property company collects sanitation fees, sewage charges and garbage disposal fees, all of which are repeated charges. The fees charged for these violations should be refunded.

The security in community B has always been good, and no cases have happened. Therefore, there is no need for the property company to provide security work, and the owner should not give the property company security maintenance fees.

C. An owner, Wang, rented his house to Liu, and both parties agreed that Liu would pay the property fee. Therefore, the property company should not require Wang and Liu to bear joint and several liability for the property fees owed by Liu.

Before D, the property service contract was signed by the construction unit and the property service company, and the owner was not a party to the contract, so the contract was not binding on the owner.

Correct answer: a

Answer analysis: this question examines the property service contract. Option a is correct. Article 5 of the Interpretation of the People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Property Service Dispute Cases stipulates that if a property service enterprise violates the provisions of the property service contract or laws, regulations and departmental rules, it expands the scope of charges, raises the standard of charges or charges repeatedly without authorization, and the owner raises a defense on the grounds of illegal charges, the people's court shall support it. The people's court shall support the owners' request to the realty service enterprise to refund the illegal fees charged by them.

Option b is wrong. Article 6 of the Interpretation of the People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Property Service Disputes stipulates that if the owner refuses to pay the property fee without justifiable reasons or fails to pay the property fee within a reasonable period after being urged in writing, the people's court shall support the property service enterprise's request to the owner to pay the property fee. Property service enterprises have provided services in accordance with the contract and relevant regulations, and the people's court will not support the owners' defense on the grounds that they do not enjoy or need to accept relevant property services.

Option c is wrong. Article 7 of the Interpretation of the People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Property Service Disputes stipulates that if the owner and the lessee, borrower or other property user of the property agree that the property user shall pay the property fee, and the property service enterprise requests the owner to bear joint and several liability, the people's court shall support it.

Option d is wrong. Article 1 of the Interpretation of the People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Property Service Disputes stipulates that the preliminary property service contract signed by the construction unit and the property service enterprise according to law and the property service contract signed by the owners' committee and the property service enterprise selected by the owners' congress according to law are binding on the owners. If the owner raises a defense on the grounds that he is not a party to the contract, the people's court will not support it.

7. Luo mortgaged a house worth 654.38+10,000 yuan and borrowed 80,000 yuan from Hao. During the mortgage period, Luo rented the house to Miao. Because Miao forgot to turn off the gas, the house caught fire and the house depreciated by 20 thousand yuan. What kind of rights does Hao have in this regard? ( )

A. claim compensation of 6,543,800 yuan from Miao.

B. Ask Luo to repay in advance

C. ask Luo to auction the house and pay the deposit.

Ask Luo Jiangmiao to pay him 20 thousand yuan in the bank.

Correct answer: D.

Answer analysis: This question examines the mortgage. Article 193 of the Property Law stipulates that if the mortgagor's behavior is enough to reduce the value of the collateral, the mortgagee has the right to ask the mortgagor to stop his behavior. If the value of the collateral decreases, the mortgagee has the right to demand the restoration of the value of the collateral or provide a guarantee corresponding to the decreased value. If the mortgagor fails to restore the value of the collateral or provide guarantee, the mortgagee has the right to demand the debtor to pay off the debt in advance.

Paragraph 2 of Article 5 1 of the Guarantee Law stipulates that if the mortgagor is not at fault for reducing the value of the collateral, the mortgagee can only request the guarantee within the scope of compensation obtained by the mortgagor for the damage. The part of the mortgaged property whose value has not been reduced shall still be used as the guarantee of the creditor's rights.

Article 80 of the Interpretation of the Guarantee Law stipulates that if the collateral is lost, damaged or expropriated, the mortgagee may give priority to the insurance money, compensation or compensation of the collateral. If the collateral is lost, damaged or expropriated, and the creditor's rights secured by the mortgagee have not been paid off, the mortgagee may request the people's court to take preservation measures for the insurance money, compensation or compensation.

Options b and c are wrong. According to the above regulations, Luo will mortgage the house and rent it to Miao. Because Miao inadvertently caused the house to depreciate, Luo was not at fault, so Hao had no right to ask Luo to repay in advance, nor did he have the right to ask Luo to auction the house and deposit the price.

Option a is wrong. Miao should be liable for compensation to the lessor Luo because he accidentally burned the rented house, but he did not intentionally infringe Hao's mortgage and was not liable for compensation.

Option d is correct. Article 174 of the Property Law stipulates that during the guarantee period, the guaranteed property is damaged, lost or expropriated. , the holder of the security right can be given priority in the payment of insurance money, compensation or compensation. If the performance period of the secured creditor's rights has not expired, the insurance money, compensation or compensation may also be deposited. Compensation for Miao is 20 thousand yuan, which is the transformation of the value of mortgaged houses. As the creditor's rights have not yet expired, Hao has the right to ask Luo to deposit compensation.

8. In order to expand the production scale, Tianyu Automobile Repair Factory borrowed 6,543,800 yuan from the bank to purchase automobile maintenance equipment. The bank asked Tianyu garage to provide guarantee. Considering that the registered trademark owned by the garage has a high reputation, both parties negotiate to use the property right in the exclusive right of the registered trademark as the guarantee for repayment of the loan. The two sides signed a written pledge contract, but it was not registered. Three months later, another auto repair shop built in the neighboring county found Tianyu Factory and proposed to use its registered trademark and pay the corresponding usage fee. Because Tianyu Factory often signs similar trademark license contracts, it only signs a trademark license contract with the completed factory after reaching the corresponding standards. After learning this situation, the bank thought that the licensing behavior of Tianyu Automobile Repair Factory violated its pledge right, and there was a dispute between the two sides. Which of the following statements is correct about this case? ( )

A. the pledge contract is invalid and the license contract is valid.

B. When the pledge right is established, the trademark license right is established.

C. If the pledge right is not established, neither is the right to use the trademark license.

D the pledge contract has come into effect and the license contract is valid.

Correct answer: D.

Answer analysis: this question examines the pledge of rights. Options a and b are wrong. Paragraph 1 of Article 227 of the Property Law stipulates that if the property rights in intellectual property rights such as the exclusive right to use a registered trademark, patent right and copyright are pledged, the parties concerned shall conclude a written contract, and the pledge shall take effect when the relevant competent department handles the pledge registration. It can be seen that the pledge contract in this issue has come into effect, but the pledge right has not been established because it has not been registered.

Option c is wrong and option d is correct. Paragraph 2 of Article 227 also stipulates that after the pledge of property rights in intellectual property rights, the pledgor shall not transfer or license others to use them, except with the consent of the pledgor and the pledgee through consultation. The pledgor shall pay off the creditor's rights in advance or deposit the proceeds from the transfer or license of the pledged intellectual property to others. As the pledge has not yet been established, this clause does not apply. Tianyu automobile maintenance factory can completely license others to use its legally registered trademark exclusive right.

9. Yu provided a batch of cloth and asked Zhang to make him a batch of work clothes. Both parties agree to pay on delivery. Zhang asked for payment after making overalls, but he was unable to pay due to debt problems, so Zhang kept the overalls. At this time, due to business needs, Zhang urgently needed a loan from Shimou, and Shimou promised to lend it to Zhang, but asked Zhang to provide corresponding guarantees. Zhang then discussed with Yu to use work clothes as collateral, and Yu agreed. So Zhang signed a mortgage contract with Shimou and registered the mortgage. After that, Zhang failed to return Shimou's loan on time. Which of the following statements is true? ( )

A. The mortgage contract between Zhang and Shimou was not established.

B. The mortgage relationship between Zhang and Shimou is not established.

C. Zhang's lien has priority over Shimou's mortgage.

D. Shimou's collateral has priority over Zhang's lien.

Correct answer: D.

Answer analysis: This question examines the concurrence of mortgage and lien.

Options a and b are wrong. The lien holder mortgages the lien. With the consent of the lien holder, if the lien holder sets up a mortgage on the performance of his debt, the mortgage can be effective, resulting in the concurrence of mortgage and lien.

Option c is wrong and option d is correct. In this case, the effect of mortgage should take precedence over lien, because the lien holder is the debtor of the creditor's rights secured by mortgage, and the debtor's rights cannot be superior to the creditor's rights. Therefore, in this case, Shimou's mortgage has priority over Zhang's lien.