Chongqing third intermediate people's court
Civil judgment
(2015) Yu three, China and France, the final word no. 00582
The appellant (plaintiff): Chongqing city Fuling District chuangyue mineral products Co. Ltd., Jiangbei office domicile Fuling District Huang Qi Ju Wei eight group, organization code 78747502-5.
Legal representative: the national day, the general manager of the company.
Attorney: Tian Yeyu, Christie's Chongqing lawyer.
Attorney: Tuo Changyou, Christie's Chongqing lawyer.
Appellee (defendant): Xia Changli, male, born in January 9, 1963, Han nationality, Jiangbei Street Office of the Department of Fuling District Huang Qi Ju Wei 8 group, Fuling District of Chongqing city.
Appellee (defendant): Tan Shanbing, male, born in May 26, 1963, Han nationality, Jiangbei Street Office of the Department of Fuling District Huang Qi Ju Wei 9 group, Fuling District of Chongqing city.
Appellee (defendant): Zhang Yong, male, born in May 23, 1966, Han nationality, residents living in Fuling District of Chongqing city.
Appellee (defendant): He Qingming, male, born in March 19, 1969, Han nationality, driver, live in Fuling District of Chongqing city.
More than four of the common principal agent of the appellant: Hu Zhangyou, Fuling Chongqing District litchi legal services legal workers.
The Chongqing District of Fuling city chuangyue mineral products Co. Ltd. and appellee Xia Changli, Tan Shanbing, Zhang Yong, Ho Ching Ming to protect property rights dispute case, Chongqing city Fuling District People's court made in March 16, 2015 (2015) Fu Min Chu Zi No. No. 00166 civil judgment method. Fuling, Chongqing District, a mining products Co., Ltd., the court refused to accept the decision to appeal to the hospital. After accepting the hospital, the court formed a collegiate bench to hear the case, now the end of the trial.
The trial court found that: in the afternoon of August 27, 2014, Xia Changli and Tan Shanbing at the factory gate and Zhang Yong He Qingming will hire containers shipped to Fuling District of Chongqing chuangyue mineral products Co. Ltd., Fuling District of Chongqing city and the influence of mineral products Co. Ltd. to work out. In December 24, 2014, Chongqing city Fuling District chuangyue mineral products Co. sued the court of first instance.
Chongqing city Fuling District chuangyue minerals limited to the first instance court said: in August 8, 2013, my company and Xia Changli, Tan Shanbing and Zhang Yong signed a "lease agreement", Xia Changli plant, Tan Shanbing Zhang Yong, will be located in the Jiangbei Street office Fuling District Huang Qi Ju Wei 8 group Fuling Bridge North Building Materials Industry Company of idle factory rent give me the company for the production of mineral products processing and coating, the annual rent of 16000 yuan, a term of 5 years, from May 1, 2013 to May 1, 2018. The afternoon of August 27, 2014, Xia Changli, Tan Shanbing, Zhang Yong instigated He Qingming together with others to my company leased plant vexatious, forced closure shop door, smashed the door of a factory building, the company vehicles blocked the transport of raw materials trucks and other means, causes our company can not produce, was forced to shut down. To the end of November 27, 2014, resulting in direct economic losses of 135264 yuan. Xia Changli, Tan Shanbing, requesting an order of Zhang Yong and He Qingming: 1, to remove the hindrance, stop the infringement; 2, compensation for the loss of 135264 yuan; 3, by Xia Changli, Tan Shanbing, Zhang Yong, He Qingming bear the costs of litigation.
Xia Changli, Tan Shanbing, Zhang Yong, He Qingming argued: 1, the main qualification is not suitable. In this case the actual ownership of the factory is Jiangbei Street office Fuling District Huang Qi Ju Wei eight or nine group and Zhang Yong, Xia Changli, Tan Shanbing, Zhang Yong and the Chongqing District of Fuling City, a building lease agreement more mineral products Co. Ltd signed, without any legal relationship with the case of He Qingming, Xia Changli, Tan Shanbing's signature is duty behavior. 2, Chongqing city Fuling District chuangyue mineral Co., no evidence that Xia Changli, Tan Shanbing, Zhang Yong, He Qingming has not exist infringement, removal of obstacles, the issue of damages, request the people's court rejected the claim.
Court of first instance that the case is the case of tort damages. Xia Changli and Tan Shanbing at the factory gate and Zhang Yong He Qingming will hire containers shipped to Fuling District Chongqing chuangyue mineral Co., affecting its normal work, which constitutes more than two joint tort shall bear joint liability according to the law to eliminate the obstruction, to stop the infringement. Xia Changli, Tan Shanbing, Zhang Yong in the joint tort as a natural person, its main qualification. And He Qingming is employed, according to the law does not bear civil liability. In Fuling Chongqing District Chong Yue ore products Co., Ltd. advocated the loss of compensation, because of the Fuling District, Chongqing, Chong Yue ore products Co., Ltd. has not provided sufficient evidence to prove the objective existence of its losses, not to support. Accordingly, in accordance with the "People's Republic of China property law" thirty-fifth, People's Republic of China "tort liability law" the first paragraph of article sixth, eighth, fifteenth, thirty-fifth and the "PRC Civil Procedure Law" sixty-fourth the provisions of the first paragraph, sentence:
A, Xia Changli, Tan Shanbing, Zhang Yong immediately stop the infringement, and in the decision within three days after the commencement of the containers shipped from Fuling District of Chongqing chuangyue mineral products Co. plant, by Xia Changli, Tan Shanbing, Zhang Yong two, He Qingming bear joint liability; no tort liability; three, dismissed the Fuling District of Chongqing city hit the mine the product Limited company's other claims. Case acceptance fee 3084 yuan, 1542 yuan to be charged by half, by Xia Changli, Tan Shanbing, Zhang Yong burden.
Fuling District, Chongqing City, the more ore products Co., Ltd. is not against the first instance verdictThat appealed to this court, requesting revocation of the verdict, commuted or remand the law, the first and second litigation fees shall be borne by the appellee. Its appeal reason is: one, the first instance finds that the facts are not clear. 1, the appellant cited a number of facts prove that the appellee in the joint tort, forced by container plugging my shop door, stop the company's raw materials transport trucks, the company can not produce business, was forced to shut down. The first instance is that the appellant's infringement is the impact of the appellant “ normal work ”. 2, since the court of first instance found that the appellant He Qingming Department of Xia Changli, Tan Shanbing, Zhang Yong, three people hired to stop the door of the house with the container of the appellant, the appellant shut down, stop production. He Qingming, the appellant and the appellant Xia Changli, Tan Shanbing, Zhang Yong constitute a joint tort. The first instance is that it was employed by the appellant Xia Changli, Tan Shanbing, Zhang Yong, does not constitute a violation of the fact that it is wrong. 3, the first instance verdict. The original judgment now that the appellee's behavior does not constitute infringement, the judgment of economic compensation.
Xia Changli, Tan Shanbing, Zhang Yong, He Qingming, respondent said: 1, the case of the main body of the case. I have never signed any agreement with the appellant, and the appellant has no legal basis for the prosecution. Xia Changli, Tan Shanbing, Zhang Yong,, only with the appellant Fuling District, the more minerals limited and Fan Guoqing signed the "plant lease agreement". 2, in this case, the actual plant ownership is Fuling Jiangbei District 8, 9 groups of Huang Qi and Zhang Yong, without any legal relationship with the case where the qingming. Xia Changli, Tan Shanbing's signature behavior is not personal behavior, but the position of behavior. In the afternoon of January 22, 2015, the Fuling district court trial transcripts, the appellant signed a lease agreement that is with Xia Changli, Tan Shanbing, Zhang Yong, Xia Changli, Tan Shanbing, Zhang Yong and Fuling district more mineral Co., Fan Guoqing signed a lease agreement. Four, 3 of the appellant did not have the right to the appellant infringement, there is no stopping the infringement, no compensation for the loss of obligations. Requests the court to dismiss the appeal and upheld the original verdict.
In the second instance, the appellant shall be proof of its appeal, provided the following evidence to the court: the certificate issued by the IRS, Fuling Jiangdong 1. Intends to prove its normal production since 2013, according to the law to pay taxes. 2013 1 - December is approved by the taxable income taxable income approved enterprise income tax, the tax rate is 10%, 2013 1 - December corporate income tax paid in taxes 2400 yuan. 2014 1 - December corporate income tax paid in taxes 1200 yuan. 2, the power invoice (copy), the amount of 14803 yuan, to be proved by the appellant before blocking the door of a month, the normal production of the appellant. 3, May 8, 2014 bridge north shareholders meeting minutes (copy). To prove that He Qingming is an interested party. 4, posted on the door of the factory a notice (copy), to prove that He Qingming is a shareholder, the above is also the tomb of the tomb of the signature. 5, a photo taken in January 20, 2015, to prove that the container is also blocking the entrance. 6, report and Chongqing Jiangbei street safety supervision and management office that intends to prove that in September 15, 2014, to Fuling Jiangbei District of Chongqing city safety production supervision request after the completion of the rectification rectification of safety supervision project approval request. Jiangbei Street office safety supervision and management office issued a certificate in January 27, 2015, the rectification project has been completed rectification.
Hostage taking: 1 of the evidence is not recognized; the appellant does not pay a monthly basis, it should be shown the official invoice issued by the State Administration of taxation. The evidence is 2, the evidence is a copy, not the quality certificate. 3 no original evidence, no quality certificate. 5 do not recognize the evidence, the scene is not consistent with this photo. 6 of the evidence, there is no original, no quality certificate.
The appellee He Qingming: evidence of 3, because the August 27th notice Jiangbei saws for inspection, the appellant because there are security risks, they ordered to suspend production for rectification. But the Appellant was still in production, so we sent him this notice.
The appellant responded to the appeal of the hostage taking evidence: 3 of the evidence was provided by Yuan Yongli, who was asked to move out of the meeting, which was in the hands of the appellant.
The appellee to prove its claim for showing the following evidence: 1, safety production administrative law enforcement documents, to prove safety supervision bureau shall be ordered to stop the appeal, not by the appellant reason caused shutdown. 2, (2014) the No. 06483 Fu law civil ruling, the appellant intends to prove that in the process of prosecuting He Qingming, cannot prove the infringement, automatic withdrawal. 3, Jiangbei Street Office of Fuling District in December 6, 2014 yellow residents committee issued a confirmed, intends to prove that our no infringement occurs. 4, Jiangbei Street Office of Fuling District in April 30, 2015 yellow residents committee issued a confirmed, and the appellant intends to prove that our agreement is to perform their duties, the appellant appellee shutdown is not caused, is because the security check failed. The appellant did not use the container to block the door of the appellant. 5, a scene photos, intends to prove that the appellee without authorization to get a gate line and safety are not qualified, Safety Supervision Bureau was ordered to stop production for rectification of the appellant. 6, 3 photos, intends to prove that administration inspection, the appellant's legal representative in the field.
The appellant appellee shown evidence of opinion: evidence from 1, the 27 day is a routine inspection, found that the problem is small, and the appellant in August 29th after the completion of the rectification, to the safety supervision bureau made reportThat is the production safety supervision bureau agreed. And the security problem has nothing to do with the case. The evidence of 3, 4, the neighborhood of these are false. The evidence for 5, 6, is not recognized.
The hospital submitted to the appellant's evidence for 1, a certificate issued by the Department of state organs, although the Supreme People v. tax invoices, but the appellant is given online payment, no invoice, is reasonable, the court shall be admissible. 2 of the evidence, although the evidence is a copy, but in combination with the appellant and the respondent's statement, it can be found in the appeal to stop the appellant before the factory door, the appellant is normal production status. On the evidence of 3, evidence of 4, although it is a copy, but the combination of He Qingming statements in the trial, the appellant knew the normal production, because the production team to its shareholders, in order to prevent the production, will be placed in the container modification houses lifting the appellant door can be accepted. On the 5, 6 admissible evidence. The appellee submitted evidence 1, on-site inspection record is issued by Chongqing Jiangbei Street Office of production safety supervision and management office, the record although there are two law enforcement officers signature, but the law enforcement inspection record not stamped seal, not mandatory, of course is not the legal effect shall be ordered to stop production, the hospital inadmissible on the evidence. Evidence 2, Department of the Department of the withdrawal decision, right of disposition, can not prove that the four respondent no infringement; evidence of 3 and 4, because in this case the Department of infringement as a tort, Xia Changli, Tan Shanbing, Zhang Yong in a trial of its responsibility, no appeal shall be considered for the sentence. Four the appellee has not shown in Fuling Jiangbei District, 8 yellow 9 groups of villagers Congress or the villagers decided to obstruct the appellant production of evidence, the court on the evidence inadmissible. On the evidence of 5, 6 photos, and can not prove that the case of the incident, and filed with the appellant's photo to shield, the hospital inadmissible.
The court of second instance that: on August 2013, the legal representative of Fan Guoqing and Zhang Yong, Xia Changli, Tan Shanbin (soldiers) signed a lease agreement for plant, located in Fuling District of Chongqing City Jiangbei office yellow eight group north bridge building materials industry company vacant factories. Annual rent of 16000 yuan, hire for five years. From May 1, 2013 to May 1, 2018. Because the appellee requests to terminate the lease agreement and the appellant failed, the evening of August 28, 2014, He Qingming will be a container shipped to the leased factory gate, blocking the door to the factory, raw materials and the appellant's products can not be normal transportation, caused by the appellant has been discontinued. The next day, the appellant's legal representative Fan Guoqing to the Fuling District Public Security Bureau police station Chongqing Jiangbei police said: someone will be placed in the container of the entrance of the company, request the public security organs. In August 31st of the same year, Fan Guoqing once again to the Fuling District Public Security Bureau police station Chongqing Jiangbei police said: some people put the company on valve repair factory brick pieces, request the police station. In September 2nd of the same year, in November 11th, the appellant to Chongqing Jiangbei Street office written report of the situation, the request to deal with the problem of street leaders to prevent the situation, to avoid vicious disputes.
He Qingming also found that: in the second statement, Zhang Yong, Xia Changli, Tan Shanbing knows it will hire a container placed plant gate to the appellant under production.
Re identification: the appellant Fuling District, Chongqing District, a mining products Co., Ltd. in 2013 1 - December corporate income tax paid 2400 yuan; 2014 1 - December corporate income tax paid in taxes 1200 yuan; approved tax rate of 10%.
The fact that other facts ascertained by the court is identical to the fact that the court of first instance found out.
The court held that the appellant Chongqing District of Fuling city chuangyue mineral products limited company signed a lease contract with Zhang Yong, Xia Changli, Tan Shanbing was made to appeal, the right of lease, the lawful possession of rental housing, the corresponding business use right should be protected by law. Zhang Yong, Xia Changli, Tan Shanbing to rescind the lease contract in advance, to recover the rental housing to hire He Qingming will be placed in the container rental housing door, leading to the appellant Production Department of infringement; where the container is placed in the tomb that the appellant is in the production of the factory gate, will lead to the appellant production still blocked Zhang Yong, Xia Changli, Tan Shanbing in accordance with the employer's requirements apply, should be identified infringement intentionally subjective, shall be jointly liable with Zhang Yong, Xia Changli, Tan Shanbing. In the second instance, the appellant cited new evidence, which led to the fact that the facts of this case have changed. The court of first instance finds that the Appellant had lost errors, shall be corrected, the hospital according to the certificate issued by the tax authorities and the appellant in the trial show the loss of the appellant's discretionary basis, loss of 15000 yuan. After the appellant has been infringed, the right shall be advocated in a timely manner, and the prejudice shall be excluded. The court shall determine a reasonable period of 1 months, and the part of the time limit shall be extended to the extent of the loss, and the loss shall be borne by the appellant.
In summary, part of the appeal grounds of the Appellant was established, the part of the claim should be supported by this court. In accordance with the "people's Republic of China Civil Procedure Law" article 170th, paragraph (three), "People's Republic of China property law" provisions of the 245th, the sentence is as follows:
First, the revocation of Chongqing city Fuling District People's Court (2015) Fu Min Chu Zi No. No. 00166 civil judgment method;
Two, Xia Changli, Tan Shanbing, Zhang Yong, He Qingming immediately after the decision to stop the production of Fuling District, Chongqing City, a mining products Co., Ltd., eliminate the obstruction;
Three, by Xia Changli, Tan Shanbing, Zhang Yong, He Qingming in the 15 days after the entry into force of compensation within the Fuling District, Chongqing City, a mining products Co., Ltd., the loss of 15000 yuan;
Four, rejected the appellant Fuling District, Chongqing District, a mining products Co., ltd..
If the period is not specified in accordance with the provisions of the monetary obligation, shall be in accordance with the "PRC Civil Procedure Law," the provisions of the 253rd, double payment of interest on debt during the delay in performance.
The case acceptance fee of 1542 yuan, the case acceptance fee of 3084 yuan, totaling 4626 yuan, borne jointly by the appellee, Tan Shanbing, Zhang Yong, Xia Changli He Qingming.
This decision is final.
Trial judge Li Yong
Trial judge Cai Wei
Acting judge Zhang Yan
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Two, 15 July 8th
Book keeper Hong Yan