Request for revision of civil appeal 1
Appellant: Lin xx (font name: Computer Business Department of Guangzhou xx Computer City)
Id number: 35012xxxxxxxxx
Address: file xxx, 4th floor, xx Computer City, No.38-40, XX Road, XX District, Guangzhou.
Appellee: Xu xx (font name: xx consignment department, xx District, xx City)
Id number: 330823xxxxxxxxx
Registered address: Shop 24,No. xxx Road 12, XX District, XX City
Current business address: xx consignment department, file xx, Guangzhou xx Shipping Center.
The appellant refuses to accept the civil judgment (xxX)No. 1 of the People's Court of XX District, Guangzhou, and now appeals against the case of the dispute over the transportation contract with the appellee.
Appeal request:
1, requesting to cancel the judgment of first instance and supporting the appellant's claim of first instance according to law.
2. The litigation costs of this case shall be borne by the Appellee.
Reasons for appeal:
1. The waybill did not record in detail that the goods were caused by the fault of the appellee, and the appellant had submitted complete evidence about the contents and value of the goods. The court of first instance held that the contents and value of the goods consigned by the appellant were unknown and had no factual and legal basis.
1. Article 304 of the Contract Law of course requires the shipper to accurately indicate the necessary information for the transportation of goods to the carrier, but the shipper is not a legal expert. If the shipper is not aware of this provision of the law,
It is necessary to remind or inquire as the carrier of a professional transportation enterprise, or provide a detailed waybill to ask the shipper to declare the necessary situation of cargo transportation, but in this case, the appellee failed to do this.
According to witness Guo, when accepting the business, the appellee's staff only asked the consignee and contact number, but did not ask the appellee about the name, nature, quantity and value of the goods.
All the columns about the transportation of these goods were filled in by the appellee without asking, and the appellant only signed the waybill.
Even if the appellee asked the appellant to fill in the waybill himself, the appellant could not declare it in detail because the columns in the waybill were simple.
The space in the cargo name column of the waybill is too narrow to write down all six cargo names; There is no column on the waybill about the nature, weight and volume of the goods, and the appellee has no weighbridge to weigh the goods;
There is no column in the waybill that requires the shipper to declare the actual value of the goods, although there is? Declared value? The column needs to involve the value of the goods, but according to? What should the shipper know? Medium? The insurance rate is charged at 0.3%? This expression,
This column is specially designed for the calculation and payment of insurance premium. Once the appellant fills in the form, it means that he has chosen insurance transportation, which obviously does not belong to the special declaration clause of the actual value of the consigned goods.
It can be seen that the appellee did not think it necessary to know the name, nature, weight, quantity and value of the goods in detail in writing and orally at least when making the bill of lading and accepting the transportation business.
The appellee's bill of lading is simple in design, which can't accurately show the detailed information needed for cargo transportation; The appellee did not ask the appellant to fill in the waybill to declare the goods himself.
Nor did he ask the appellant to make a written list of goods detailing the name and actual value of the goods in addition to the column of the waybill provided by the appellee. He just filled in the waybill and did not ask the appellant about the goods.
Therefore, the failure to record the goods in detail in the waybill was caused by the appellee's own extreme negligence in the goods, and the appellant was not responsible for it.
In the first trial, the appellant submitted the following evidence to prove the content and value of the delivered goods:
A the appellant's business license proves that the appellant has the right to handle the consignment goods;
B the sales certificate and business license of the appellant's predecessor (Li Gengming)-proving that the transaction is legal and true;
C consignee's certificate and business license-to prove the authenticity and content of the transaction between the consignor and the consignee;
4. Testimony of witness Guo (who has appeared in court for cross-examination)-to prove the appellant's rights to the waybill and the goods transported.
A series of evidence about the actual value of the goods submitted by the appellant, on the premise that the appellee lost all the goods that should be delivered safely and on time, is enough to form a complete chain of evidence to prove the specific content and value of the goods delivered by the appellant.
In this case, the appellee only verbally denied the above-mentioned evidence submitted by the appellant, but did not provide corresponding rebuttal evidence. It is unfair for the court to ask the appellant to bear more burden of proof.
Does not conform to the legislative spirit of Articles 2, 7 and 72 of the Supreme People's Court's Several Provisions on Evidence in Civil Procedure, and the probative force of the evidence submitted by the appellant shall be confirmed.
To sum up, the detailed description of the goods on the waybill is caused by the fault of the appellee, and the appellant has submitted complete evidence about the content and value of the goods.
The court of first instance held that the contents and value of the goods consigned by the appellant were unknown and lacked factual and legal basis, so it could not be established. The content and value of the goods claimed by the appellant should be recognized.
Second, the standard clauses on the amount of compensation in the waybill are invalid because they violate the provisions of the contract law. The court of first instance ruled that it was wrong for the appellee to make compensation according to this clause, which obviously confused the boundary between the shipper's right to participate in insurance and the carrier's compensation obligation.
The waybill signed by the appellee and the appellee is a format clause drawn up by the appellee in advance, which is used repeatedly when dealing with unspecified objects, and cannot be negotiated with the other party when concluding a contract.
Among them? What should the shipper know? Articles 3 and 4 divide the carrier's liability for compensation into two situations: the shipper participates in insurance and the carrier makes compensation according to the insurance; If the shipper is not insured, the carrier's liability for compensation is limited to five times the freight of the damaged goods.
As far as its meaning is concerned, the appellee expressed a strong desire and asked the appellant to take the initiative to take out cargo transportation insurance.
However, the shipper insures the transport goods only to make up for the possible deficiency of the carrier's liability, and the shipper has the right to choose whether to insure with the insurance company and whether to insure in full.
This is a completely different legal relationship from the liability for damages that the carrier should bear according to law.
The carrier cannot claim exemption through the insurance contract relationship unrelated to its liability.
In this case, the appellee directly linked the shipper's participation in insurance with the carrier's liability limit through standard clauses. The shipper's compensation for participating in insurance is limited to insurance, and the shipper's compensation for not participating in insurance is limited to five times the freight of damaged goods.
It clearly confuses the boundary between the shipper's right to participate in insurance and the carrier's compensation obligation, and actually stipulates that cargo transportation insurance is the shipper's necessary obligation, which actually exempts him from compensation liability.
Does not conform to Article 5 of the Contract Law? The principle of fairness should be followed to determine the rights and obligations of all parties? The basic principles of the Contract Law also violate the principle of voluntary conclusion of insurance contracts in Articles 4 and 14 of the Insurance Law.
What about the appellee's waybill? What should the shipper know? Articles 3, 4 and? Please insure the goods at the actual price, or pay compensation at five times the freight? The format clause of the contract is invalid because it violates the provisions of Article 40 of the Contract Law.
Therefore, the appellee's compensation for the loss of goods should not be bound by the above-mentioned format clauses in the waybill, but should comply with the provisions of Article 312 of the Contract Law. Calculated according to the market price of the place where the goods arrive at the time of delivery or delivery.
III. The Appellee failed to provide a complete column in the freight bill or the insured agreement, which made it impossible for the Appellee to choose insured transportation. The court of first instance held that the appellant did not choose the insurance clause and should bear the consequences of his own choice.
The waybill provided by the appellee? What should the shipper know? The third column indicates:? Our company carries out insurance transportation? , but using the following words and other related columns? Insurance? In a word, like what? Take insurance? 、? Paid by insurance? 、? Insurance premium? 、? Don't participate in the insurance signature? Wait a minute.
Therefore, we think the following columns include? Declared value? The pillars are all for insurance.
Since the appellee claims to carry out insured transportation, the appellee, as the provider of the standard contract, should provide a complete insured agreement in the freight bill, which should include: a, the basic compensation amount agreement; B. column of insurance price: insurance amount and insurance cost.
Both items are indispensable, especially the insurance column.
However, the appellee's waybill did not provide the relevant insurance column for the appellant to insure the goods, and the appellee did not provide another insurance contract or document to the shipper.
It can be seen that the insurance agreement has not actually been established.
In this case, the appellee has the responsibility to provide complete columns or documents of the insurance agreement, so the legal consequence of the failure of the insurance agreement can only be that the legal effect of limiting the appellee's liability for compensation does not occur, and the appellee shall be liable for compensation according to the actual losses of the plaintiff as stipulated in the Contract Law.
To sum up, there are obvious mistakes in the first-instance judgment, so please revise it.
I am here to convey
Guangzhou intermediate people's court
Appellant: Lin xx
Agent: XXX, XXX.
Civil appeal for amending the second sentence
Appellant: Lin XX (font name: Computer Business Department of Guangzhou XX Computer City)
Id number XXXXXXXXX
Address: file XXX, 4th floor, XX Computer City, No.38-40, XX Road, XX District, Guangzhou.
Appellee: Xu XX (font name: XX consignment department, XX District, XX City)
Id number XXXXXXXXx
Registered address: Shop 24,No. XXX Road 12, XX District, XX City
Current business address: XX consignment department, file XX, Guangzhou XX Shipping Center.
The appellant refuses to accept the civil judgment (XXX)No. 1 of the People's Court of XX District, Guangzhou, and now appeals against the case of the dispute over the transportation contract with the appellee.
Appeal request:
1. Request to cancel the judgment of first instance and agree to the divorce procedure.
And support the appellant's first-instance litigation request according to law.
2. The litigation costs of this case shall be borne by the Appellee.
Reasons for appeal:
1. The waybill did not record in detail that the goods were caused by the fault of the appellee, and the appellant had submitted complete evidence about the contents and value of the goods. The court of first instance held that the contents and value of the goods consigned by the appellant were unknown and had no factual and legal basis.
1. Article 304 of the Contract Law of course requires the shipper to accurately indicate the necessary information for the transportation of goods to the carrier, but the shipper is not a legal expert. If the shipper is not aware of this provision of the law,
It is used to remind or inquire about the carrier who needs a professional transportation enterprise, or to provide a detailed waybill to ask the shipper to transport the goods, but in this case, the appellee failed to do so.
According to witness Guo, when accepting the business, the appellee's staff only asked the consignee and contact number, but did not ask the appellee about the name, nature, quantity and value of the goods.
All the columns about the transportation of these goods were filled in by the appellee without asking, and the appellant only signed the waybill.
Even if the appellee asked the appellant to fill in the waybill himself, the appellant could not declare it in detail because the columns in the waybill were simple.
The space in the cargo name column of the waybill is too narrow to write down all six cargo names; There are no columns in the waybill, such as the nature, weight and volume of the goods, and the shareholders' investment agreement.
In addition, the appellee has no weighbridge to weigh the goods at all; There is no column in the waybill that requires the shipper to declare the actual value of the goods, although there is? Declared value? The column needs to involve the value of the goods and compare the divorce procedures.
But according to? What should the shipper know? Medium? The insurance rate is charged at 0.3%? This column is specially designed for the calculation and payment of insurance premium. Once the appellant fills in the form, it means that he has chosen insurance transportation, which obviously does not belong to the special declaration clause of the actual value of the consigned goods.
It can be seen that the appellee did not think it necessary to know the name, nature, weight, quantity and value of the goods in detail in writing and orally at least when making the bill of lading and accepting the transportation business.
The appellee's bill of lading is simple in design, which can't accurately show the detailed information needed for cargo transportation; The appellee did not ask the appellant to fill in the waybill to declare the goods himself.
Nor did he ask the appellant to make a written list of goods detailing the name and actual value of the goods in addition to the column of the waybill provided by the appellee. He just filled in the waybill and did not ask the appellant about the goods.
Therefore, the failure to record the goods in detail in the waybill was caused by the appellee's own extreme negligence in the goods, and the appellant was not responsible for it.
In the first trial, the appellant submitted the following evidence to prove the content and value of the delivered goods:
A. The appellant's business license-proving that the appellant has the right to handle the consignment goods;
B the sales certificate and business license of the appellant's predecessor (Li Gengming)? Prove that the transaction is legal and true;
Civil appeal for amending the third sentence
Appellant (defendant in the original trial): XXX, male, Han nationality, born on June1970 65438+1October 65438+July 7, 2005.
Household registration: Yuhuan County, Zhejiang Province
ID number:
Appellee (plaintiff in the original trial): Fujian XXX shoes and clothing co., ltd.
Legal representative: XXX
Address: Nan 'an, Fujian,
The appellant appealed the civil judgment No.535 of Quanzhou Intermediate People's Court of Fujian Province (20 1 1) because the facts in the original trial were unclear and the applicable law was wrong.