Chinanews.com, Beijing, July 1st Question: Tencent was cheated of tens of millions of yuan in advertising costs, only to admit that it was unlucky?
Reporter Wang Qingkai
Around Tencent and "Lao Ganma" ten million yuan in advertising disputes. Tencent’s latest response stated, “It’s hard to say a word, and in order to prevent similar incidents from happening again, we asked for similar clues with 1,000 bottles of Lao Ganma as gifts.”
Public opinion has literally interpreted the meaning of Tencent's self-identification. In addition to prosecuting the three criminal suspects for legal liability, can Tencent only admit that it is unlucky?
Tens of millions of dollars in advertising costs
A civil ruling issued by the Shenzhen Nanshan District Court recently showed that it agreed with the plaintiff Tencent to request the seizure and freezing of property worth RMB 16,240,600 under the name of the defendant Lao Ganma Company.
In this regard, Tencent responded on the evening of June 30 that the matter was that the old godmother put 10 million yuan in advertising on Tencent, but ignored the contract’s long-term arrears and unpaid, Tencent was forced to sue according to law and applied to freeze the other party’s arrears Amount.
According to reports, in March 2019, Tencent and Laoganma Company signed a "Joint Marketing Promotion Agreement". Tencent invested resources for the promotion of Laoganma oil and pepper series. Tencent has fulfilled its obligations under the contract, but Laoganma Mom didn't pay according to the contract.
However, after a night, the plot reversed. The Guiyang Police reported on July 1 that the tens of millions of yuan in the advertising agreement was that Cao Mou and three other people forged the seal of the old Ganma company, posing as the manager of the company's marketing department and signed an agreement with Tencent.
Three "hair thieves" who are close to 40 years old are posing as old godmothers to sign this advertising agreement. The purpose of this advertising agreement is even more interesting: in order to obtain the online game gift package code that Tencent provided in the promotion activities. At present, 3 people have been detained.
A legal person told a reporter from China News that according to the facts disclosed by the police, "Laoganma" may become the "biggest winner" without having to bear legal responsibilities and earning advertising worth tens of millions of yuan out of thin air.
"Lao Ganma picked a bargain"
Lawyer Liu Changsong, the director of Beijing Mugong Law Firm, told Zhongxin.com that the key to whether Laoganma needs to pay tens of millions of yuan in advertising costs depends on the authenticity of the official seal. If the official seal of the three people signing an agreement with Tencent is a true official seal, the court may determine that the three are apparent agents. In this regard, Laoganma may need to pay more than 10 million yuan in advertising costs to Tencent, Laoganma then blame the suspect.
The so-called apparent agency refers to the fact that although the actor has virtually no agency power, the relative has reason to believe that the actor has agency power and engages in legal acts with him, and the legal consequences of his actions are borne by the agent.
At present, according to the Guiyang police report, the official seal was forged by three people. Liu Changsong believes that if the court finally confirmed that the three people forged the advertising promotion agreement signed by the official seal of Laoganma, and Laoganma did not know. Laoganma does not need to bear legal responsibility, nor does it need to pay for advertising. "Lao Ganma thought it was cheap."
What responsibilities should the three suspects bear? Liu Changsong believes that at present, the three people are mainly suspected of violating the Criminal Law for "forging the seals of companies, enterprises, institutions, and people's organizations" and "crimes of fraud."
According to the provisions of the Criminal Law, the crime of falsifying a seal is generally punishable by imprisonment of less than 3 years, detention, control or deprivation of political rights.
According to Article 266 of the Criminal Law, if public or private property is defrauded, if the amount is particularly large or if there are other particularly serious circumstances, it shall be punished with imprisonment of more than ten years or life imprisonment, with fines or confiscation of property.
Although the three people have both the crime of forging seals and the crime of fraud, Liu Changsong said that because of the implication of the means and purpose of the two crimes, generally according to the principle of handling the implicated offender, only one of the serious crimes will be punished, and the other crimes are considered as appropriate factors. Punishment.
"The final punishment is related to the conviction and the loss of the injured party." Liu Changsong said that if it is a crime of fraud, the property deceived by the three people is only the value of the online game gift code. If the loss is caused by civil infringement and the contract is signed in the name of another person, the loss of Tencent's million yuan in advertising costs will be calculated based on this amount.
However, Liu Changsong also said that the real loss of advertising costs is difficult to define. Especially for online advertisements such as Tencent, which are different from those of TV stations, TV stations have limited advertising time. "If you broadcast one ad, you will not be able to broadcast another ad. The loss is easy to identify. Tencent’s network space is unlimited, so losses are difficult to define."
Liu Changsong believes that Laoganma actually has improper gains, but getting promotion is different from obtaining other benefits. If you don’t ask for it, you will find Laoganma to ask for a promotion fee. “It’s like forced car washing to find someone to Car wash fees are the same," it is difficult to get support.
Tencent can only admit that it is unlucky?
In addition to prosecuting the three criminal suspects for legal liability, can Tencent only admit that it is unlucky?
Li Jingjing, a lawyer from Beijing Weiheng Law Firm, told reporters at Zhongxin.com that in view of the preliminary confirmation by the public security organs that Cao had forged the seal of Laoganma Company, only Tencent in this case only provided evidence to prove that the actions of the three constituted the "table See Agent", there is the possibility of recovering all or part of the advertising costs from Laoganma Company.
Li Jingjing believes that whether it constitutes an apparent agent, first of all, it should be judged whether Cao Mou’s unauthorized agency behavior objectively shows that he has the right of agency, and secondly, he should judge that Tencent Company as a contract counterpart is signing the "Joint Marketing" Whether the "Cooperation Agreement" is subjectively well-meaning, that is, "there is a reason" to believe that unauthorized agents have agency rights. The so-called "reasonable" corresponds to whether Laoganma Company has corresponding negligence and omissions.
At present, the process and details of the communication and signing of the "Joint Marketing Promotion Cooperation Agreement" between Tencent and the three people are still unclear. Li Jingjing believes that, generally speaking, before any agreement is signed by any company, the identity and authorization of the relevant personnel of the counterparty of the contract will be basically reviewed.
Li Jingjing believes that in this case, if Tencent has fulfilled its review obligations, there are indeed cases where Tencent has reason to believe that the three have agency rights, such as whether Cao Mou and others were employees of Laoganma Company before, and the incident Whether the Laoganma Company issued an overly broad authorization to them before, and whether the three used the Laoganma Company's corporate mailbox to communicate with Tencent, etc., various details may affect whether the court finally determines whether it constitutes an "apparent agent".
Li Jingjing said that if the court finally determines that it constitutes an "apparent agent", it will basically recognize the identity of Tencent's goodwill counterpart. In this case, Laoganma Company still needs to follow the "Joint Marketing Promotion Agreement" in principle. Agreed to pay for advertising, and then recover from the relevant responsible person. (Finish)