The appellant Hongrun Construction Group Co., Ltd., Ningbo Branch, refused to accept the judgment of Haishu District People's Court (20 1 1) No.2532, because of a dispute with the respondent over the liability for damage to ground buildings and underground facilities. Now the respondent replies as follows:
I. Issues concerning the determination of the facts of a case
In the first instance and appeal, the appellant argued that it was not that it did not set up obvious safety warning signs and take safety protection measures, but that it set up three roadblocks on the construction section. However, the appellant did not provide any evidence to support this view, only the statement of his agent Wang. At the same time, if you just set up a roadblock, it doesn't mean it's finished? Set up obvious safety warning signs and take safety protection measures? Obligation. Because there is no street lamp in this section, the road pier can be seen during the day and not at night, and the accident happened at night. Therefore, it believes that the appeal opinion of the traffic police department and the court of first instance that the facts are wrong cannot be established.
Second, whether the accident is a road traffic accident.
The accident has been identified by the Traffic Police Brigade of the High-tech Zone, and the appellant has not raised any objection to the traffic police department of the public security within the statutory time limit. What about now? Does everyone in Ningbo know? It is really confusing to imply that the accident was not a traffic accident. In addition, in this case, the plaintiff claimed rights from the defendant according to Article 9 1 of the Tort Liability Law. What was the cause of this case? Disputes over liability for damage to ground buildings and underground facilities? . Therefore, whether the accident is a road traffic accident is irrelevant to this case.
Third, about the distribution of responsibilities.
According to the appellant, the incident section is an overpass that has not yet been opened to traffic. Since it has not yet been built, it should be fully enclosed, such as installing temporary simple gates at intersections or arranging personnel to be on duty to prevent other personnel and vehicles from entering. Because the overpass has not been built, but it has been connected with the main road. If there are no obvious warning signs or certain closure measures, how do pedestrians and vehicles know that the bridge is impassable? The accident certificate shows that the person under investigation was hit by a stone pier on the road when he entered the bridge deck one kilometer away. That is to say, the appellant did not take adequate measures to close the intersection, but built roadblocks on the pavement of the bridge. It is conceivable that on the road without street lights at night, these roadblocks are like several terrible traps, which may devour unsuspecting passers-by and vehicles at any time. Therefore, it is precisely because of the appellant's negligence in fulfilling the obligation of safe production that the respondent's car was destroyed and people were disabled. The appellant has an unshirkable responsibility for this. According to the provisions of Article 125 of General Principles of Civil Law and Article 9 1 of Tort Liability Law, if the appellant fails to set safety warning signs and take safety measures during road construction, thus causing damage to the respondent, he shall bear tort liability. At the same time, due to the respondent's failure to fulfill the full duty of safety care, according to the provisions of Article 26 of the Tort Liability Law, the respondent also made some mistakes in the occurrence of damage, which can reduce the appellant's responsibility. However, this mitigation should only be appropriate, and the appellant should still bear the main responsibility.
In order to save the life of the respondent, the respondent's family borrowed nearly 200,000 yuan from relatives and friends for medical expenses. The defendant, who used to be the pillar of the family, has now become a burden to the family, which is heavily in debt for him. The year is approaching, and debt collection is repeated. In order to pay off the debt as soon as possible and get compensation, when the court of first instance presided over the mediation, the respondent voluntarily gave up the town bid and was willing to bear half the responsibility by himself. Although the respondent was not very satisfied with the first-instance judgment, in order to close the case as soon as possible,
No appeal was filed. As soon as the respondent gave in, the appellant put it off again and again, and has not paid the respondent a penny so far.
To sum up, the defendant believed that the appellant's appeal grounds could not be established, and the judgment of the court of first instance found that the facts were clear, the applicable law was accurate and the reasoning was clear, which should be maintained. In order to safeguard the legitimate rights and interests of the respondent, the court of second instance was requested to uphold the original judgment and reject the appellant's appeal according to law.
I am here to convey
Ningbo Intermediate People's Court
Interviewee: Ma Chao
Agent:
20xx 65438+ 10 month 17
Respondent: Shi Zhijian, male,1born on July 28th, 972, Han nationality, living at No.97 Renmin Street, Nansha Economic and Technological Development Zone, Guangzhou.
The Respondent made the following reply to the appeal filed by the appellant Xinfeng (Nansha) Hardware & Plastic Products Co., Ltd. on the general sales contract dispute:
First, the court of first instance found that the facts of the case were clear, the legal relationship was accurate, the applicable evidence was appropriate, the responsibility was reasonable, and the trial procedure was legal. Therefore, the civil judgment (2005)No. 1346 of Panyu District People's Court of Guangzhou City, Guangdong Province is reasonable and legal, and the court of second instance is requested to uphold it according to law in order to safeguard the legitimate rights and interests of the respondent. The facts confirmed in this case are as follows:
1. There is a legal business relationship between the defendant and the appellant.
The respondent is the operator of Nansha Hardware Fuel Business Department in Panyu, Guangzhou. From June to August, 2004, in the name of Guangzhou Panyu Nansha Hardware & Fuel Business Department, the Respondent began to trade hardware products and packaging materials with the appellant Xinfeng (Nansha) Hardware & Plastic Products Co., Ltd. First, the appellant sent an order for goods through his company's fax machine. The purchase order clearly records the serial number, project name, specification, unit, quantity, unit price and delivery date of the ordered goods. The purchase order has the signature of the person in charge and the fax number of the company. Subsequently, the respondent provided the appellant Xinfeng (Nansha) Hardware Plastic Products Co., Ltd. with hardware products and packaging materials by delivery.
The defendant fulfilled the obligation of delivery according to the contract.
From June to August, 2004, the respondent delivered the goods to the freight yard of the applicant company in batches according to the contents specified in the applicant's purchase order. Guo Jian, Zhou Songhua, Li Xiaoxiong and Zhang Huamin, the Appellant's staff, signed the delivery note and the material receipt respectively for confirmation after accepting the goods.
The appellant's failure to pay after receiving the goods constitutes a breach of contract.
According to the agreement of both parties, the appellant should pay within one month after receiving the goods, but so far the appellant still owes me a total of 19 1 19.40 yuan. The appellant's behavior has constituted a serious breach of contract and should bear the responsibility for breach of contract.
Second, the defendant's refutation of the views held in the appeal.
1. There is not only a sales contract relationship between the respondent and the appellant, but also the contractual obligations have been actually fulfilled.
As early as May 2004, the defendant established a business relationship with the appellant. At that time, the appellant purchased the hardware materials of the respondent valued at 3449.30 yuan. After receiving the goods, the appellant paid the payment by cheque, and after receiving the payment, the respondent issued a receipt to the other party. Later, from June to August, 2004, the Appellant sent several purchase orders to the Respondent, requesting to continue to purchase goods. The respondent delivered the goods to the appellant in batches according to the agreement, and the employee of the other party signed the delivery note and material receipt after receiving the goods. These facts not only show that there is a business relationship between the two parties, but also prove that the respondent has fulfilled the contractual obligations.
2. The appellant is the eligible subject of this case.
According to Chinese laws, an enterprise as a legal person shall bear civil liability for the business activities of its legal representative and other staff. Although the Respondent and the Appellant did not sign a written sales contract, and the purchase order, delivery order and material requisition did not have the Appellant's official seal, there was still a sales contract relationship between the two parties, because all the people who signed the material requisition and delivery order were employees of the Appellant's company, and they all signed for the goods at their jobs and during working hours. Obviously, their signature is an act of performing the duties of the company, so the appellant should bear civil liability for the duties of its employees, that is, bear the obligation to pay in this case.
To sum up, there is a legal business contract relationship between the Respondent and the Appellant, and the Appellant has fulfilled the contractual obligations, but the Appellant has refused to fulfill the payment obligations without justifiable reasons so far, which constitutes a serious breach of contract and fundamentally infringes upon the legitimate rights and interests of the Appellant, and the Appellant should bear all legal responsibilities according to law. I think the appellant's appeal request is unreasonable and the judgment of the court of first instance is correct. I hope that the people's court of second instance will support it according to law.
Zhezhi
Guangzhou intermediate people's court
Respondent: Shi Zhijian