U.S. Election System Law and Constitution

When the United States was first established two hundred years ago, the founders of the United States designed the electoral system. The main purpose at that time was to prevent politicians from making false promises to voters to defraud the votes, and the "electors" indirectly elect the president to avoid malpractices. But today this meaning has disappeared. This system is mainly to respect the rights of the states. It is a manifestation of American democracy's decentralization and respect for local state rights.

How many total number of electoral votes are there in the United States?

The total number of "electoral votes" in the United States is 538, which is the total number of Senators (100), House of Representatives (435), and Washington DC representatives (3). 

What is the distribution of American Senators State wise?

Senators are distributed by state, with 2 in each of the 50 states. Members of the House of Representatives are selected by population, and one is elected by more than 500,000 people.

 For example, New York State has a population of more than 16 million, with 31 members of the House of Representatives, plus 2 senators, for a total of 33 electoral votes.

What is winner takes all?

Except for Maine and Nebraska, if any presidential candidate wins the majority vote of the state, it wins all the electoral votes of the state, which is called "winner takes all". 

Who is elected as POTUS according to the Electoral College System?

According to the Electoral College system, a candidate who has won more than half of the 538 electoral votes (270 votes) in each state is elected president.

Since the winner-takes-all calculation method is adopted, it is possible that a candidate won the national popular vote calculated by head, but loses the general election because the electoral votes are less than half.

 For example, in the 2000 general election, the Democratic candidate Gore had 500,000 more votes than the Republican candidate Bush in the national polls. 

However, because Bush finally won several hundred votes in the Florida State of Gore, the winner is the winner. 

According to the principle, Bush won all 25 electoral votes in the state, thus making him more than half of the electoral votes in the country and he was elected president.

The Asian name of the American electoral system is American democracy, decentralization, respect for local state power, and the qualifications of voters who are 18 years of age. 

The original purpose is to prevent politicians from making false promises to voters to defraud their votes.

Table of Contents

1 Introduction to the election

▪ Voter qualification

▪ Candidacy

▪ Production method

▪ Senate election

▪ House election

▪ Election management

▪ Type of election

▪ Member composition

▪ Re-election

▪ Election time

2 Electoral system

▪ Presidential election

▪ Vice President

▪ Pre-selection stage

▪ The meaning of the election

Introduction to the election

What is Voter qualification in the USA?

All U.S. citizens who have reached the age of 18 have the right to vote. All states except North Dakota require that voters must register in advance before they can vote.

What is the Candidacy requisites for contesting the US Presidential elections?

The constitution stipulates that anyone who has reached the age of 25 and has been a US citizen for 7 years can run for Congress. Anyone who has reached the age of 30 and has been a US citizen for 9 years can run for the Senate.

 But candidates must live in the electoral district when they stand for election (so the former first lady of the United States, Hillary Clinton, temporarily moved to New York State to run for the New York State Senate).

What is the method of generating candidates for the American Presidential election?

There are many ways to generate candidates, such as recommendation by party organizations, naming by politically powerful figures, and selection by interest groups, but in most cases they simply recommend themselves.

If a candidate belongs to a certain party, he must defeat other opponents in the party in the primaries of a certain party to win the party's nomination. 

In some congressional districts where one party is overwhelmingly dominant, winning the party's nomination almost wins the election.

General candidates are nominated by the party through preliminary elections. More than a century has passed since the formation of the pre-selection system. 

The United States formed a system of nominating candidates by party congresses in the 1830s. Since then, most congressmen have been nominated by secret meetings within the party. This system makes the candidates for congressmen often controlled by the party leader.

 In 1867, Crawford County, Pennsylvania, first adopted the method of direct pre-selection to nominate candidates for local public office, that is, voters from both parties directly vote to determine the candidates nominated by the party. 

At the beginning of the 20th century, the direct pre-selection system was promoted. By 1917, 44 of the 48 states in the country had implemented some form of direct pre-selection system. 

Now, all 50 states in the United States use direct pre-selection to nominate party candidates.

Elections for US President

What is American Senate election?

Senators of Congress are directly elected by the states. Each state elects 2 senators, a total of 100 people, for a term of 6 years, and one third of them are elected every two years. 

The specific method is to divide the senators into three groups and one group for two years. Re-elected later, group 1 re-elected after 4 years, group 1 re-elected after 6 years. 

The basic principle of distribution is to ensure that two members of a state do not expire in the same year. If a senator dies or resigns during his term of office, the governor shall organize a by-election. 

Unless the state legislature authorizes the governor to appoint a senator’s successor, the successor can remain in office until the next general election, but the general election candidates only run for their predecessors.

 For the remaining term, if a senator has a term of 6 years and dies in the third year, the successor will participate in the general election after one year, and the elected will only have a term of 2 years. 

Now 49 of the 50 states authorize the governor to designate a senator’s successor, with the exception of Oregon, which must be elected through a by-election.

Before 1866, the United States did not have a unified system for the election of federal senators. Each state has its own way. 

About half of the states use bicameral voting, that is, the two houses of the state legislature elect separately, until the two houses elect the same person as the federal Senator.

What is the disadvantage of senator system?

 The disadvantage of this system is that the two houses are often deadlocked, so that a few months after the Congress, some state seats in the Senate are still vacant. 

The other half of the states use the "joint voting system", that is, members of both houses of the state legislature vote together, and the one who receives the majority of votes is elected. 

The state’s independent electoral system has brought a lot of confusion to congressional elections. 

In July 1866, the Senate Judiciary Committee submitted a report to the whole house, recommending that Congress pass laws to unify the senator election system. The two houses of Congress quickly passed the relevant bill.

What is the new senator election method?

The two houses of the state legislature vote separately, and the senators are elected by oral voting. The next day, the two houses shall hold a joint meeting to count the voting results of the two houses. If the two houses each elect the same person with a majority of votes, the federal senator shall declare the person elected immediately.

If no one obtains more than half of the two houses at the same time, the two houses of the state legislature shall hold a joint ballot at least once a day at 12 noon during the same session until the federal senator is elected. Congressman.

This method of electing federal senators through indirect elections continued until 1913. 

In 1913, two-thirds of the states approved the 17th Amendment to the Constitution, stipulating that the senators of the United States shall be elected by the people of each state, that is, pre-elected by the voters of the state before the election of the senators by the state assembly. 

The pre-selection results are stamped with the official seal.

Currently, there are 48 states in the United States that only require a single vote in the election of senators, and a simple majority can be elected, with the exception of Georgia and Louisiana.

Voting in the Senate election is not mandatory.

What is House Election in USA?

The U.S. Constitution stipulates the principle of election of members of the House of Representatives as follows: Members of Congress shall be elected according to the proportion of the population of each state, and the ratio of members to the population shall not exceed 1: 30,000 (that is, each member of the House of Representatives must represent at least 30,000 voters), but Each state should have at least one member of the House of Representatives.

 The U.S. Census is conducted every 10 years, and seats in the House of Representatives are redistributed based on the results of the census. 

According to this ratio, the current number of members of the US Congress will be as high as 7,000. The current number of 435 members is based on the results of the 13th census in 1910. 

In the 87th Congress, Alaska and Hawaii were given a place each, so that the House of Representatives has 437 members. However, it is generally believed that the legislature with 650 members like the House of Commons in the United Kingdom is too large and too heavy to increase.

 The number of members of the House of Representatives, so in 1929 Congress fixed the total number of members of the House of Representatives at 435, and the number will no longer increase with the population.

What is the principle of try to make every member of the assembly equal to the number of voters represented by other members?

The U.S. Constitution stipulates that the number of voters represented by the House of Representatives shall not be less than 30,000, but in practice it has been found that this provision is too wide. 

It is inconsistent with the principle of "try to make every member of the assembly equal to the number of voters represented by other members" established by the Supreme Court. 

Therefore, the Supreme Court passed a case ruling that when dividing electoral districts, the difference in the proportion of the population of each electoral district should not exceed 3.1%.

In 1967, the United States passed a law to abolish all states-based elections of members of the House of Representatives. That is, if a state is allocated 3 places, the state must divide 3 electoral districts in the state, and each electoral district elects one member. It is not allowed for voters across the state to vote for 3 members, unless of course there is only one place in the state. 

In the current House of Representatives seat allocation, California has the largest number of seats, with 52 seats.

 New York State is next with 29 seats; Alaska and other 7 states have 1 seat each; only 14 states have more than 10 seats.

In addition to members elected by the states in the House of Representatives, there are Resident Commissioners from Puerto Rico, and delegates from the District of Columbia, American Samoa, Guam, and the U.S. Virgin Islands. These representatives are sent to the House of Representatives. They enjoy the power of most members of the House, but they cannot vote.

What is the Election Management procedure in the Unites States?

The Federal Election Law stipulates that the Federal Election Commission shall manage election affairs. 

The Federal Election Commission is composed of 6 people, who are nominated by the President and approved by the Senate. 

The Federal Election Commission specifically enforces the Federal Electoral Management Act and prosecutes violations.

What is the Federal Election Law regarding donation to a candidate?

According to the Federal Election Law, in the same year, no individual can contribute more than US$1,000 to the same candidate, no more than US$25,000 to all candidates, and no more than US$5,000 to the same political action committee.

The National Committee’s donation must not exceed US$20,000. Any political action committee must not contribute more than US$5,000 to the same candidate within a year, and the national committee of the same political party cannot contribute more than US$15,000. 

The Democratic and Republican election committees of the Senate must not contribute more than US$17,500 to the same candidate. 

Although the law strictly controls campaign funding, there are still big loopholes in practice. Donors often donate soft money to evade legal constraints (US law does not limit the amount of money that voters can donate to support a certain policy. But in fact, a policy is likely to be a certain candidate Advocate, so donating money to support a policy is no different from supporting the candidate).

Each candidate must report the donations and campaign expenses received to the Federal Election Commission 10 days before the election or 30 days after the election, including the names, correspondence offices, and occupations of all donors who donated more than $100.

What is the type of election in the USA?

The election is divided into general election year elections, mid-term elections and by-elections. General election year elections are the four-year presidential election year congressional elections. At that time, presidential elections and congressional elections will be held at the same time. Mid-term elections refer to congressional elections held in the second year between two general election years.

 Election held when a vacancy is formed when a member of the council resigns, dies, or is expelled from the House of Representatives before the expiry of his term is a by-vacancy election.

What is the Member Composition in the US Senate?

Among the 100 seats in the current Senate, the Republicans hold 55 seats and the Democrats hold 45 seats. With 435 seats in the House of Representatives, the Republican Party has 223 seats, the Democratic Party has 211 seats, and the independent candidate has 1 seat.

There are 9 female members in the Senate, 58 female members in the House of Representatives, and 40 black members.

The vast majority of members of Congress are male, white, well-educated, middle-aged, middle- or upper-middle-income families.

In terms of occupation, the number of lawyers is the largest, accounting for more than 40% in the House of Representatives and more than 60% in the Senate. Entrepreneurs and bankers are second. 

There are very few representatives from trade unions or blue collars.

What is law regarding re-election of the US President?

The United States imposes a limit of two consecutive terms for the president’s appointment, but does not impose any restrictions on the term of office of congressmen. 

In fact, the re-election rate of U.S. congressmen is quite high. 92% of the re-elected members of the House of Representatives were re-elected, and the Senate also had 75%.

 In an ordinary general election, members of the House of Representatives with 50 to 70 seats can be re-elected without any campaign effort.

The main reasons why incumbents can be re-elected more easily are as follows: 

1. There are more resources available than opponents. You can make speeches on TV, radio, and rallies to let voters know and be familiar with (voters tend to vote for people who they know better when voting). 

You can also send letters to voters through assistants to strengthen contact and let voters Remember, you can even use your position to benefit the electorate and make voters grateful. 

2. Incumbents are more likely to obtain campaign funding than their opponents.

What is the Time of Election in the USA?

Why are Americans not like some countries where general election voting is held on Sunday?

 Because the United States is a multi-ethnic country, many people are not used to working on weekends, and the general election is no exception. 

The Americans set the presidential election day on the first Tuesday after the first Monday in November. 

It sounds a bit confusing, but that's how they stipulate it. So, why not choose Monday? 

This is because when this date was determined in 1845, the United States was still an agricultural country.

 It was difficult for some people to get to the polling place that day, and it was impossible for people to leave on Sunday, so a day was reserved for everyone.

Electoral system

President election

According to the provisions of the U.S. Constitution, the U.S. implements a presidential system and the executive power belongs to the president. The powers of the head of state and government are concentrated in the president.

 The President concurrently serves as commander-in-chief of the armed forces. The President is not responsible to Congress. The president is elected by a general election held every four years, with a term of four years and a re-election period.

The process of the US presidential election is long and complicated. It mainly includes preliminary elections, presidential nomination, election campaigns, national elections, electoral college voting, and the inauguration ceremony of the elected president.

The pre-selection phase usually kicks off in New Hampshire on the third Tuesday of February of the general election year and ends in June. 

After that, the two major political parties of the United States, the Democratic Party and the Republican Party, will respectively elect representatives to participate in their party's national conventions in most of the states.

 In a few states that do not hold pre-elections, the bipartisan state committees or congresses select representatives. 

Because New Hampshire took the lead in conducting the preliminary elections, the results of the election have had a great impact on other states.

The national conventions of the two major political parties in the United States are usually held in July and August. 

At that time, the representatives of the states participating in the Congress will vote for the party's presidential candidate, and then pass the vice presidential candidate nominated by the presidential candidate, and formally elect the campaign platform. 

Conferences are often several days long, with hundreds of votes cast.

After the congress, the elected presidential candidates began to campaign for votes across the country for several months, including campaign trips to various states, extensive meetings with voters, television speeches, and television debates. 

The presidential candidate has spent huge sums of money on the campaign and used all kinds of tricks.

The US law stipulates that in national elections, voters must go to a designated place to vote on the second Tuesday of November in the general election year and choose between two presidential candidates. 

National elections must also be voted by the electoral college. Since the presidential candidate who gets the most votes in a state wins all the electoral votes in that state, elections are generally routine.

Vice-president of USA

In American politics, the vice president does not hold actual work. His official business is to serve as the chairman of the Senate of Congress. But this is mainly ceremonial, because he only votes when the Senate votes are equal. 

The day-to-day work of the vice president is usually determined by the president's request, and is generally insignificant, such as representing the president in the funeral of foreign leaders.

According to the U.S. Constitution, if the president dies or loses his ability to work, the vice president takes over the presidency. 

Being the vice president first is one of the ways to become the president of the United States. Since the Second World War, three vice presidents have taken over the presidency during the presidency. 

Truman died because of Roosevelt, Johnson was assassinated because of Kennedy, and Ford succeeded as president because of Nixon's resignation. 

In addition, several vice presidents have also served as presidential candidates, including Nixon, Humphrey, Mundell and Bush.

 The Vice President of the United States is not directly elected by the American public, but is selected by the presidential candidates of the Democratic and Republican parties and elected by the bipartisan National Convention. 

When a presidential candidate chooses a vice presidential candidate, he must first consider the person's political qualifications and conditions. But it mainly depends on which part of the party he represents in order to strike a balance and try to win the support of the largest majority of voters.

But the election result does not depend on the presidential candidate's choice of the vice president, but on the presidential candidate. During the 1988 U.S. election, many Americans believed that the Republican presidential candidate Bush’s running partner Quill was too young, unskilled, and unworthy of consideration, and considered the Democratic presidential candidate Dukakis’s running partner Bentson to be experienced and profound.

 Fu Zhongwang. But as a result of the general election, Bush won and became president, and Quill naturally became vice president.

The vice presidential candidate is usually a member of Congress, but a senator has a higher chance of being selected as the vice presidential candidate. 

The reason is that once a senator is elected as the vice president, he will serve as the chairman of the Senate, which can strengthen the relationship between the president and the Senate.

What is the Pre-selection stage in the US Elections?

The primaries are the primary elections and are the first stage of the US presidential election. 

The pre-selection period is usually from February to June. In this stage, representatives are mainly elected to participate in the national congress of various parties, and the presidential candidates of each party are finally selected at the national congress of the party.

At present, most states in the United States implement direct pre-elections, through which voters directly elect representatives to participate in the party’s national congress, and voters can also directly express their views on presidential candidates. 

Since the representatives of the National Congress clearly expressed their support for the presidential candidate, the voting results can clearly know the support rate of the presidential candidates. 

This kind of pre-election was held in New Hampshire on February 1st this year.

What is Cadre Meeting or Grass Meeting?

Another form of pre-election is called a "cadre meeting" (or "grass meeting"), where the two parties hold the party's grassroots meeting at each election site in a state. 

The voters who support their party will express their support for who will be the president of the party Candidates and elected representatives to attend county-level representative meetings.

 Then, the county congress elects representatives to the state congress, and the state congress elects representatives to the national congress, and the national congress decides the party’s presidential candidate. 

This is the pre-selection held in Iowa on January 24. Iowa was the first state in the country to hold a party congress, and New Hampshire was the first state to hold direct preliminary elections. The pre-elections of the two states play the role of "weather vane" and "barometer". 

The results of the election will affect the pre-elections of other states in the future. Therefore, it is crucial to the success or failure of candidates.

The pre-election activities in each state, whether in the form of a pre-election or a pre-election meeting, generally only allow voters who clearly indicate that they are Democrats or Republicans to participate. 

The voters who are not clear about their party positions cannot participate. Even the former part of voters actually only participated in a small part.

What are the different concepts of the US Election?

U.S. elections often involve the 3 different concepts of "term", "ren" and "position" of the US president.

Regarding the "term", the U.S. Constitution stipulates that the presidential election shall be held once every four years, and the president shall be elected once every four years. 

If the president fails to complete his term for some reason, another person will take over, and the two presidents will be the same president.

Regarding "ren", it refers to the number of times the president has been held. One person holds the post of president for several consecutive terms and remains one term. 

However, a person has been elected several times in discrete presidential elections, and several elections count as several terms.

Regarding "position", it refers to the actual number of people who have served as president. 

Since the beginning of the election of the President of the United States, no matter whether it is re-election or several successive elections, without double counting, several people count as several.

Based on this calculation, Bill Clinton is the 52nd, 42nd, and 41st President of the United States.

 

Li Guoqing advances and retreats and touches the Fan, he wants equity or his son rides a tiger

The plot of Dangdang's annual grievance drama "Celebrating the Year of Yu" has become more subtle because of the participation of Li Guoqing and Yu Yu's sons. The focus of the people who eat melon is: whether the cause of this dispute was Li Guoqing's breach of contract and not admitting it, or Yu Yu was born out of nothing , To occupy Li Guoqing's equity?

 

On the evening of August 9, Li Guoqing posted on Weibo saying that he and Yu Yu were both defendants and that the plaintiff was his own son. His son asked the court to confirm the validity of the agreement for Li Guoqing and Yu Yu to hold Dangdang shares on his behalf.

 It is said that the highest to tomorrow, the closest relatives to the husband and wife, after the incident of Li Guoqing "snatching the official seal", there is no need to mention any relationship between husband and wife with Yu Yu. Now being sued by his only son, Li Guoqing's words on Weibo reveal a kind of tolerance of "father's love like a mountain" inside and outside.

 

However, Li Guoqing still understands in his heart that his son is now the key to control in the future. After all, the adult world is the mutual catalysis of emotions and interests. Otherwise, Li Guoqing will not add another Weibo saying on the night of August 9.

 "My appeals all the time are actually very simple: "The court ruled that I divorce and divide the common property." It seems that the years are quiet and lightly mentioned my reasonable demands, but in fact I want to take a bite of the meat from Dangdang.

 

After all, it can’t get around Dangdang’s equity distribution. Is this a farce of "fathers are not filial to children", or is Li Guoqing’s drunkard’s intention not to drink and intends to disrupt Dangdang’s equity distribution?

 

After Dangdang was delisted from the US privatization in September 2016, it no longer has public shareholders, but Yu Yu, Li Guoqing, his sons and management shareholders. Regarding the overall equity of Dangdang domestic and foreign companies, Li Guoqing and Yu Yu once had a "three-to-seven" marriage agreement.

 

Article 19 of the "Marriage Law" stipulates:

"A husband and wife may agree that the property acquired during the marriage relationship and the pre-marital property shall be owned, jointly owned or partly owned separately or partly jointly. The agreement should be in writing. 

There is no agreement or the agreement is not clear. The provisions of Article 17 and Article 18 of this Law shall apply. The agreement of the husband and wife on the property acquired during the marriage relationship and the pre-marital property shall be binding on both parties"

 

The "Reference Opinions of the First Civil Division of Beijing Higher People's Court on Several Difficult Issues in Trial of Marriage Dispute Cases (2016)" stipulates: "

There is no written property agreement between husband and wife, but both parties agree or have evidence sufficient to show that there is a property agreement If it is agreed, the property agreement shall be determined to be established."

 

 

Sorting out recent media reports, regarding the history of Dangdang's "37 open" agreement, it is probably like this:

In September 2016, Yu Yu and Li Guoqing reached an agreement on the ownership ratio of Dangdang's overall equity, and the three of them agreed with their sons that Li Guoqing and Yu Yu would have a "three seven", and the two would take out a total of 20% of the equity in the same proportion. 

To the son. According to this plan, within the family, Yu Yu accounted for 56%, Li Guoqing 24%, and his son 20%. 

And because the family’s equity in Dangdang as a whole is 93.26%, the three people each have 52.23%, 22.38%, and 18.65% in Dangdang’s overall equity. 

So far, Yu Yu, Li Guoqing and their sons have effectively completed the division of ownership of Dangdang's overall equity.

 

At that time, Li Guoqing should have agreed so willingly. Such an important property distribution is naturally unproven, so Li Guoqing and Yu Yu also signed an equity gift agreement, a debt assumption agreement, an equity transfer agreement and other documents that agreed on the ownership of the shares, and registered the equity change accordingly.

 

Article 11 of the "Contract Law" 

The written form refers to the form of contract, letter and data message (including telegram, telex, fax, electronic data interchange and e-mail) that can tangibly express the content contained in it. 

"If the agreement between Li Guoqing and Yu Yu regarding the ownership of Dangdang shares is tangibly recorded in a written agreement, etc., and the content contained in it can be clearly expressed and conforms to the legally prescribed "written form", then this should be a matter for both parties. Binding.

 

In 2018, Dangdang’s shareholders’ rights and interests were transferred from abroad to China. All parties agreed on the proportion of ownership of Dangdang as a whole, and signed an equity transfer agreement for the domestic company.

 Dangdang Kewen’s industrial and commercial registered equity was also adjusted accordingly "The agreed attribution is the same (64.20% for Yu Yu and 27.51% for Li Guoqing).

 

Another important node in the story of "37 open" also appeared in 2018, which was the HNA transaction involving the adjustment of Dangdang's equity structure. It is precisely because of the adjustment of the equity structure that the overall value of Beijing Dangdang is currently concentrated on Dangdang Kewen.

The acquisition plan and price design in the HNA transaction also clearly reflect the respective attribution agreements between Li Guoqing and Yu Yu regarding the "San Qi Kai".

 

However, given that his son is a foreign national, in Dangdang Kewen, his share of this share is proportionally allocated to all other shareholders for holding. Probably Li Guoqing himself would not have thought that his son's equity holding would become a time bomb for the division of equity in the divorce between himself and Yu Yu.

 

Let’s deduce a wave of Li Guoqing’s abacus

The "Marriage Law of the People's Republic of China" stipulates that the joint property of the husband and wife shall be jointly owned by the husband and wife during the marriage period is already a "universal clause", and many people want to rely on this to make another stroke when divorce. 

 According to Li Guoqiang's own statement on Weibo, a divorce litigation is the best strategy to fight for Dangdang's equity. In Dangdang's first major drama this year, "Snatching the official seal", Li Guoqing claimed that 91.71% of the shares held by himself and Yu Yu were joint property of husband and wife. So how much will Li Guoqing get after the divorce? 45.86%.

This equity ratio is actually very dangerous. Everyone who studies the law understands that in the "Company Law of the People's Republic of China", except for the magic number of 2/3, 50% is a ten thousand essential oil.

 If the company’s own articles of association are not otherwise agreed, then more than half of the shareholders or more than half of the equity can determine many important matters of the company.

When grabbing the official seal, Li Guoqing said that he had the support of minority shareholders. If it was true, Li Guoqing could easily start from this 45.86% ratio to become a major shareholder of Dangdang.

 

Li Guoqing used the divorce as an excuse to demand half of the total equity under the industrial and commercial registration of Kewen, in an attempt to deceive the people who eat melons and cover up the true ownership of rights and interests through the simple and crude view of "business registration + the principle of equal sharing of husband and wife property. 

Judging from the information currently disclosed, Li Guoqing's proposition not only ignores and overturns the real equity ownership agreement, but also suspects that the interests of Yu Yu and his son are encroached on. 

This is a good calculation. At this time, the son's prosecution is equivalent to setting up a roadblock for Li Guoqing, and the outline of the facts of the case will be clearer.

 

There is a high probability that the court will support the litigation claims of Li Guoqing and Yu Yu's son, and the control of Dangdang.com that Li Guoqing expected will not be realized.

 

Dangdang’s statement in the face of this other variable can also see Yu Yu’s attitude to a large extent: respect the autonomy of the parties’ will, and believe that the law respects honesty and credibility, and will continue to use legal weapons to defend the legitimate rights and interests of the company and all shareholders to protect the normal operation of the company.

 As a legal worker, few people strongly support Dangdang's statement that gentlemen love money and get the right way. Wealth is the foundation of material life, the law is the bottom line of behavior, and everyone should have the spirit of contract.

 

Finally, let us skip the scope of law and think about it from a macro perspective. Will there be an absolute beneficiary or victim in this matter? Hard to say. As the only son of Li Guoqing and Yu Yu, this step is probably extremely difficult.

 If Li Guoqing, as a father, wants to show his true paternal love, should he consider honestly and trustworthy abiding by the original shareholding agreement between the three and giving his son a life without entanglement?

 

 

The resignation of personal trainers in the fitness club leads to disputes, but the annual card fee and course fee cannot be refunded?

After applying for the annual card, paying the dues and class hours, the personal trainer suddenly left, and the service courses he should have been delayed repeatedly. The fitness club actually responded "If you don't continue to pay, you will interrupt the course"? After repeated negotiations to refund the fee, the party concerned brought the fitness club to the court, demanding that the contract be terminated and the corresponding fee refunded. The Haidian Court heard the case a few days ago.

 

1. Private education courses were repeatedly interrupted, and negotiations failed to sue to court

Ms. Zhang signed a fitness service contract with a fitness club. After that, Ms. Zhang signed a personal trainer agreement, and the designated personal trainer provided planned courses.

 

 

TV series Thirty Only stills

At the end of September 2018, Ms. Zhang’s personal trainer suddenly left, and the fitness club did not explain to Ms. Zhang. In November 2018, the front desk of the fitness club replied that the personal trainer could not be contacted, and delayed the time on this ground.

 

After many questions, Ms. Zhang found Lu, the legal representative of the fitness club, and negotiated a refund with her. Lu immediately agreed to refund the membership fee and personal education fee.

 

 Ms. Zhang and Lu Mou signed a supplementary agreement, agreeing that Lu Mou is willing to compensate for 5 private lessons. 

If you regret or let someone else take the lesson, you should refund immediately.

If there are uncompleted courses, the fitness club should Refund the annual membership fee and the remaining private lessons.

 

However, Ms. Zhang's courses were still interrupted for various reasons such as requesting to continue to pay fees, and other coaches were also taking the place during the course.

 

 2. The fitness club constitutes a breach of contract, member refunds to support

The court held that this case should be a service contract dispute. First, the fitness service contract signed between Ms. Zhang and the fitness club, the personal trainer agreement, and the supplementary agreement between Lu and Ms. Zhang are all true expressions of intent between the parties, and the content is legal and effective, and does not violate the law.

The mandatory provisions of laws and regulations should be legal and effective.

 

According to the provisions of Article 8 of the Contract Law, a legally established contract is binding on all parties to the contract. The parties shall perform as agreed.

 

Second, the two parties had a dispute regarding the fact that Ms. Zhang failed to attend the course in accordance with the contract. The fitness club's claim was due to Ms. Zhang's personal reasons, but she failed to provide evidence and the court rejected it. In the end, the court ruled that the fitness club would refund Ms. Zhang's annual card fee and corresponding class hours.

 

 Contract Law of the People's Republic of China

Article 8. Contracts established in accordance with the law are legally binding on the parties. The parties shall perform their obligations in accordance with the agreement and shall not modify or terminate the contract without authorization. Contracts established in accordance with the law are protected by law.

 

Article 94 In any of the following circumstances, the parties may terminate the contract:

 

(1) The purpose of the contract cannot be achieved due to force majeure.

 

(2) Before the expiration of the performance period, one of the parties clearly stated or indicated by its own behavior that it would not perform the main debt.

 

(3) One of the parties delays the performance of the main debt, and fails to perform it within a reasonable time limit after being urged.

 

(4) One of the parties delays in the performance of debts or has other breaches of the contract, which makes it impossible to achieve the contract purpose.

 

(5) Other circumstances stipulated by law.

 

3. Personal service contract: focus on consumer experience

In addition, in practice, fitness clubs often defend themselves on the form of "no refunds once the private training courses are sold." 

According to judicial practice, the situation of "personal trainer leaving suddenly" can be determined as a statutory cancellation of "the purpose of the contract cannot be achieved".

The fitness service contract has a certain personal nature, and the purpose of the contract is to provide specific personal services, and the quality of the personal training course is closely related to the professional level of the personal training and its own quality.

 

If you are unwilling to accept the replacement of other coaches, because the service contract is not suitable for compulsory performance, the parties can terminate the contract based on this request.

 

Article 26 of the Law of the People’s Republic of China on the Protection of Consumer Rights and Interests: 

Where operators use standard terms in their business activities, they shall draw consumers’ attention to the quantity and quality of goods or services, prices or fees, and performance periods and methods in a prominent way.

 Safety precautions and risk warnings, after-sales service, civil liability, etc., which are of major interest to consumers, shall be explained in accordance with the requirements of consumers. 

Operators shall not use standard clauses, notices, declarations, store notices, etc., to exclude or restrict consumer rights, reduce or exempt operators from responsibilities, and aggravate consumer responsibilities that are unfair and unreasonable to consumers, and must not use formats Terms and use technical means to force transactions. 

Format clauses, notices, declarations, shop notices, etc. that contain the contents listed in the preceding paragraph shall be invalid.

 

Can a civil lawsuit be filed after the criminal judgment is recovered or compensation is refunded?

In the actual handling of criminal and civil cases, there are many difficult and controversial issues. But in general terms, there are two basic issues: one is how to grasp the operating sequence of criminal procedures and civil procedures, and whether the two are the first and the second, and whether they can go hand in hand. The second is the issue of res judicata after a criminal or civil judgment is made, that is, to proceed first The effectiveness of the criminal judgment or civil judgment on the civil part or the criminal part.

 

 

1. On the issue of criminal and civil procedures

A basic rule of criminal and civil cases is that criminal cases and civil cases involving the ‘same fact’ should be resolved through criminal proceedings in principle. "

 

Specifically, from the perspective of the subject of the conduct, the "same fact" refers to the conduct performed by the same subject, and the conduct performed by different subjects does not belong to the same fact; from the perspective of legal relationship, the victim of a criminal case is also a civil law 

The counterparty of the relationship can be identified as the "same fact"; from the perspective of essential facts, only the facts that are disputed in a civil case are also essential facts of a criminal offense.

 

The above judgment criteria are relatively clear and easy to operate. But at the same time, it should be noted that according to the above-mentioned standards, the scope of "criminal-civilian intersection" cases is relatively narrow. 

From a practical point of view, how to grasp the scope of criminal-civil cases is actually a problem with large differences of understanding, and this is a crucial issue in the reasonable construction of a mechanism for handling criminal-civil cases.

 

Regardless of whether it is law enforcement or case handling or the formulation of judicial documents, it is not appropriate to implement "one size fits all" regardless of circumstances. 

When dealing with criminal and civil cases, we must make clear a basic position, that is, we must choose ideas and mechanisms that are more conducive to protecting the legal rights of the parties and solving the problems more fairly and effectively. 

Rather than being entangled in the judgment of the "same fact", and then hesitating in deciding whether to apply the mechanism of "criminal first and civilians later", it is better to take a stand that better protects the interests of the parties and handle cross-criminal cases based on the principle of seeking truth from facts.

 

Specifically, in accordance with Article 150, paragraph 1, item 5 of the Civil Procedure Law, “this case must be based on the outcome of another case, and if the other case has not been concluded, the trial should be suspended”.

 The time sequence of criminal and civil litigation in inter-civilian cases, and whether there is a dependency relationship between the two, determine the acceptance and trial of criminal and civil litigation:

 

(1) When there is no contradiction between the handling of civil and criminal proceedings caused by criminal and civil cases, and there is no mutual dependence between the two, they can be "concurrently" and proceed separately or in parallel.

 (2) When the civil lawsuit and the criminal lawsuit caused by the criminal-civil intersecting case may conflict, and the proceeding of the civil lawsuit needs to be based on the result of the criminal lawsuit, the civil lawsuit should be “prior to the criminal”.

 (3) When criminal litigation triggered by criminal-civil intersecting cases requires the result of civil litigation as a prerequisite, it should be "first the citizens and then the punishment".

 

 

2. Regarding the res judicata of prior judgment

In handling criminal and civil cases, a basic position should be clarified: the difference between criminal and civil proceedings is natural, but once a criminal or civil judgment is made, we should fully respect the outcome of the judgment and cannot easily negate the civil or criminal law. Use civil to deny criminal.

 

 

1. The civil judgment has been sentenced to compensate for losses, but it has not been executed or cannot be executed. Should the defendant be sentenced to refund in criminal cases?

 

In practice, some people believe that because civil judgments have not been executed, the handling of civil cases should not be considered in criminal proceedings, but should be refunded or recovered in the amount of criminal cases ascertained. 

This actually uses criminal judgments to replace civil judgments. According to the above-mentioned clear judicial position, this approach needs to be reflected.

 

The civil judgment for compensation for losses has been made, which means that the victim's claim has received judicial relief, and there should be no need to return the criminal judgment. 

As for the enforcement of civil judgments, it is only a practical issue, which is restricted by many objective factors, but it will not change the fact that the victim’s property losses have been protected by the court’s effective judgment. What's more, even if the criminal judgment is refunded or recovered, there may still be the problem of impossibility of enforcement.

 

People may believe that in practice, the victim's right to choose the method of litigation should be respected. Once he chooses to resolve it through civil litigation, the criminal litigation should be initiated cautiously. 

This is also a powerful measure to prevent some civil parties from abusing criminal proceedings and "promoting the people with punishment". Some people may worry about improper civil judgments. 

This problem also exists in criminal judgments. Moreover, the realization of the rights of parties includes two links: civil judgments and enforcement. For some problems in the judgments, judgments in the enforcement field can also be used. Regulation.

 

 

2. Can a civil lawsuit be filed after the criminal judgment is recovered or refunded?

According to the 1998 Supreme People’s Court "Regulations on the Scope of Criminal and Attached Civil Litigation", if the victim cannot recover the loss in the People’s Court according to law or ordered to return compensation, he may initiate a civil lawsuit separately.

 

However, from a practical point of view, the general enforcement rate of criminal judgments involving recovery or refund of compensation is not high (there are many reasons for this). 

Therefore, there is a view that although the criminal judgment involves recovery of stolen goods but the victim has not been fully refunded, the victim should be allowed to initiate another civil lawsuit.

In practice, some local courts have also introduced the practice of issuing a certificate of not all returned stolen goods to the victim in order to allow the victim to successfully file a civil case.

 If we follow the aforementioned judicial position, we understand that, in principle, the parties should no longer be allowed to initiate another civil lawsuit.

 In particular, if there is a clear amount of refund and the subject of the refund and the subject of the right in the criminal judgment, if it cannot be enforced only because the defendant is insolvent, the victim should directly apply to the court for enforcement instead of it is allowed to file another civil lawsuit with the court for the same loss, because the people's court has already made judicial confirmation and guarantee for the loss claim, and further lawsuit will only waste judicial resources and the cost of the parties.

 

Of course, the enforcement department should pay attention to the enforcement of criminal judgments, and should not make "different treatment" between criminal enforcement and civil enforcement, and especially should not deliberately set thresholds to artificially exclude the enforcement of some criminal sentences.

 

Finally, what I want to say is that the handling mechanism of criminal-civilian cases is a very practical topic. Three concepts should be established in actual case handling:

 

The first is the overall concept. We must look at the facts of the case in a comprehensive manner, especially for cases involving criminal and civil litigation, we should look at the problem as a whole, and we should not go to the front, discuss the matter and deal with it one-sidedly.

 

The second is the concept of integration. There should be more exchanges between civil and criminal, and they should be good at mutual borrowing ideas. 

For example, criminal judges should listen to the opinions of civil judges on issues directly related to the validity of contracts, while civil judges should listen to the opinions of civil judges on issues directly related to the validity of contracts. Listen more to the opinion of the criminal judge.

 

The third is the concept of coordination. The differences between criminal proceedings and civil proceedings naturally exist. Under the current institutional framework, it is difficult to reach a complete agreement between the two. 

Conclusion

However, coordination and unity on issues of principle should be emphasized. Retreat to the north and negate each other. For example, if the criminal is not recognized as a crime, the civil still recognizes that the contract is valid.