Answer/reply summary
Respondents:
Qingdao Xinfeng shipping agent co., ltd
Legal Representative: Jian Yao, manager.
Address: omitted
Respondent: Shandong Qinghe Import and Export Co., Ltd.
Legal Representative: Ping He, board chairman.
In the case of the dispute between the respondent and the respondent over the freight forwarding contract, the respondent refused to accept the judgment No.53 of Qingdao Maritime Court and appealed. According to the facts and laws, the respondent made the following defense:
Reasons and basis for reply:
1. The respondent believes that the court of first instance found that the facts were basically correct, and there was no distortion or misinterpretation of the law, so the grounds for appeal identified by Peking University could not be established.
The focus of this case is the confusion of corporate personality. However, no matter in the appeal of the appellant (defendant Shandong Qinghe Import and Export Co., Ltd.) in the first and second instance, the appellant produced decent evidence to prove the independence of its corporate personality, and also produced the evidence that the appellee (plaintiff) could deny about the appellee's personal confusion. On the contrary, in the trial of first instance, the appellant described the mixed operation and the abuse of the independent status of the company as a legal person. Save costs? . Therefore, in fact, the appellant cannot deny the abuse of the independent status of the company as a legal person.
2. What does the appellant think? The appellant is a company invested by five people, including Zhuge Qingsheng and Ping He. It is a completely independent legal person with independent shareholders, legal capital and sound accounts? . The defendant and the court of first instance did not deny this. Because the denial of corporate personality is based on the legal and effective existence of corporate personality. Logically speaking, if the independent personality of the company is not legal at all, there will be no abuse of the corporate personality by shareholders, and there will be no denial of the independent personality of the corporate on this basis.
In this case, on the one hand, the appellant abused the shareholders' control over the company and manipulated the company to harm the company's own interests, which was a self-destructive behavior of the company (this point was clearly stated by the defendant in the lawyer's proxy statement at the first instance). On the other hand, the appellant used the principle of corporate personality independence to defend the creditor's rights, hoping to achieve the purpose of evading the law, which was not feasible. The appellant's self-destruction of the company violated the principles of non-abuse of rights and good faith, so the company's personality should be denied.
The defendant presented four pieces of evidence again in the second trial (see evidence 1, 2, 3 and 4). These evidences still show that the appellant and the appellee Shandong Gourmet Food Co., Ltd. have the same business and customers. And this similarity is not what the appellant said? The court of first instance denied the appellant's independent personality only when part of the business of the appellant and the appellee Shandong Gourmet Food Co., Ltd. was the same as that of customers. Is it biased or not? . It is an important link in the whole chain of evidence. It is not only the confusion of business, but also the transfer of business resources. If you put this? Some businesses and customers are the same? Out of the whole chain of evidence, that is the real bias.
It seems that there are many appellants? Don't understand? . It is no wonder that if the finance, business, organization and personnel of the three companies are highly chaotic, even if they do business in the name of this company today, they will use another company to avoid debts tomorrow, and then consider how to establish another company the day after tomorrow. How can he see the difference, and how can he integrate them? Understand? Is it?
Judging from past judicial practice, like this? Corporate personality? In the negative case, the plaintiff is often in a weak position and often suffers from the lack of effective evidence. But in this case, the appellant is always lip-synching, and can't come up with anything substantial. Is that what the appellee is like? Don't understand? Yes
5. Finally, it is necessary to explain some views on the first-instance judgment. The respondent thinks that since the court of first instance found Zhuge Qingchuan as the actual controller of the three companies (defendants), what else should it take? There is no evidence to prove Zhuge Qingchuan's shareholder status, and there is no evidence to prove Zhuge Qingchuan's property and company hotchpot? . It is inappropriate to deny the respondent's claim that Zhuge Qingchuan should be jointly and severally liable for the debts of food companies. According to Article 48 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Company Disputes (Draft for Comment) published to the public on June 4, 2003, Corporate personality denial? Articles 49, 50, 565, 438+0 of the system respectively stipulate the following situations, and creditors have the right to raise them? Corporate personality denial? The lawsuit directly requires the controlling shareholder to bear joint liability for the company's debts: (1) excessive control (abuse of corporate personality); (2) One-man company in essence (that is, the controlling shareholder is confused with the company in terms of capital, business and finance, and it is impossible to distinguish which is owned by the controlling shareholder and which is owned by the company). Article 64 of the new "Company Law" takes an attitude of abusing the presumption of legal person qualification for shareholders of a one-person company, and accumulates an attitude of inversion of the burden of proof. If the shareholders of a one-person company cannot prove that the company's property is independent of the shareholders' own property, it shall be presumed that the one-person shareholder abused the company's legal person status. Therefore, the respondent believes that the legal responsibility of the fourth defendant in the first instance still needs to be investigated, and Zhuge Qingchuan, Yuqing Company and Tongtai Company are jointly and severally liable for the debts of the gourmet company. Return the fairness and justice of the law.
To sum up, the respondent believes that the facts ascertained in the first-instance judgment are basically clear, the applicable law is correct, and the trial procedure is legal, which should be maintained according to law. The appellee's appeal request has no factual and legal basis, so it shall be rejected according to law, and the appellant shall be ordered to bear the litigation costs of the first and second instance of this case.
I am here to convey
Shandong Higher People's Court
Respondent: Qingdao Xinfeng Shipping Agency Co., Ltd.
2006 10 month
Classic defense example 2:
Answer/reply summary
Defendant's defense on Tian Yong v. University of Science and Technology Beijing for refusing to issue graduation certificates and degree certificates is as follows:
First, the plaintiff sued unreasonably.
Plaintiff Tian Yong violated the Education Law of the People's Republic of China, the Regulations on Academic Degrees in People's Republic of China (PRC), the Interim Measures for the Implementation of the Regulations on Academic Degrees in People's Republic of China (PRC) and the Emergency Notice of University of Science and Technology Beijing on Strict Examination Management. During the make-up exam, the invigilator found a piece of paper with electromagnetic formula written on it. University of Science and Technology Beijing decided to drop Tian Yong out of school and informed the relevant departments in the school. At the same time, Abel Tamata Yong's notice has also been sent to the college in Tian Yong through the school email. At this point, Tian Yong's student status has been cancelled. Because Tian has never cooperated with the relevant procedures, some departments of the school are not in place, and some faculty members do not understand the situation, resulting in the fact that they can continue to study in the school after dropping out of school. However, the acquiescence of some departments and teachers in the school to Tian Yong's continued study in the school does not represent the will of Beijing University of Science and Technology, nor can it prove that Tian Yong's student status has been restored. Without a student status, you don't have the conditions for college graduates. Therefore, it is correct for University of Science and Technology Beijing to refuse to issue graduation certificate and degree certificate to Tian Yong, and it is in line with the current laws and regulations of our country.
The plaintiff's request is unfair.
1. This court is an administrative court. According to the principle of separation of administrative power and judicial power, prosecutors have no right to directly ask the court to order University of Science and Technology Beijing to take specific administrative actions.
2. The legitimate rights and interests of the plaintiff have not been infringed. How can the plaintiff's spirit be violated?
Seek compensation for mental damage and publicly apologize to the plaintiff.
To sum up, the facts of this case are clear and the law is conclusive, and the court should reject the plaintiff's unreasonable prosecution and claim.
I am here to convey
Beijing Intermediate People's Court
Respondent: Wu FanXXxx, xx, xx.