China News Agency, Beijing, July 4th, Question: What are the judicial difficulties behind the "Funny Goose Injustice"?

  China News Service reporter Zhang Su

  In the classic Chinese tragedy Dou E Wrong, Dou E died due to judicial corruption. The “funny grievances” that have received much social attention recently reflect some of the judicial difficulties that currently exist.

  "Funny goose" is a new term coined by netizens in the dispute between Tencent and Lao Ganma. Penguin is the logo of instant messaging software developed by Tencent. People often use "goose" to refer to Tencent. The "grievance" of "Goose" is that Tencent sued Laoganma for arrears of advertising fees. Laoganma said that he never engaged in any commercial cooperation with Tencent and reported the case to the police. The police in Guizhou initially found that the three suspects forged the seal of Laoganma Company, posing as the manager of the company's marketing department, and signed a cooperation agreement with Tencent.

  The dispute between Tencent and Lao Ganma was pushed to the stage, and a civil ruling was uploaded by the People's Court of Nanshan District, Shenzhen, Guangdong Province to the China Judgment Document Network on June 29: the court agreed to support the plaintiff's request, The property of the defendant Guizhou Laoganma Company with a value of 16.24600 million yuan (RMB, the same below) was sealed up and frozen. The ruling also disclosed that Tencent sued Laoganma on March 17, 2020, and the Nanshan Court ruled on Tencent’s application for property preservation on April 24, and it was a “litigation preservation” rather than a “pre-litigation preservation”. ".

  What effect does this ruling have? Zhu Yicong, a lawyer from Beijing Yingke (Shenzhen) Law Firm, said that the "enforcement enforcement ruling" is not a judgment or a mandatory enforcement document, but is a litigation preservation enforcement document. "One of the reasons for applying for litigation preservation is to prevent judgments from being difficult to enforce," he said.

  Some lawyers believe that according to the provisions of the Civil Procedure Law, Tencent applied for the preservation of more than 10 million yuan of property of the old godmother and submitted the corresponding guarantee. This is an emergency and the court makes a ruling on preservation.

  However, Lei Xin, a professor at the School of Political Science and Law of Central South University of Forestry and Technology, believes that the need for "litigation preservation" in this case is debatable. The Civil Procedure Law stipulates that "protection of litigation" should meet certain conditions. The substantive condition is that there are circumstances that may make the judgment made by the people's court difficult or impossible to achieve due to various subjective and objective reasons, or there may be circumstances that may cause the interests of the parties to be disqualified. The situation of due damage. "With the status of an industry giant like Laoganma, it is hard to imagine that it cannot fulfill its 16 million yuan debt." He said.

  There is also doubt that the above ruling stated that "this ruling shall be executed immediately upon delivery". Laoganma said that he received the relevant legal documents on June 10, but said in an interview on July 1 that "the ruling has not been implemented." In addition, Tencent said that it had “prompted many times, so it had to prosecute according to law”, and Laoganma said that “Before receiving the relevant legal documents, Tencent never levied advertising fees”. Lei Xin bluntly stated that when facing disputes, the two parties should first jointly identify the problem and eradicate the causes of the dispute, rather than directly exerting pressure through judicial means.

  The Shenzhen Nanshan District People's Court stated that the case is being further examined, and the final result is subject to the opinions of the collegiate bench. According to the "Provisions of the Supreme People's Court on Several Issues Related to Suspects of Economic Crimes in the Trial of Economic Dispute Cases", the court shall rule to dismiss the prosecution and transfer the relevant materials to the police or Prosecution. The People's Procuratorate of Nanming District of Guiyang City said on the 3rd that it had "appointed a prosecutor to intervene in advance to understand the case and guide the investigation".

  Research on the trend of the case, Yao Haifang, associate professor of the Renmin University of China Law School pointed out that in criminal liability, the three suspects were suspected of using Laoganma’s name to sign a contract with Tencent to defraud Tencent’s property, which constituted contract fraud. With regard to civil liability, if the Laoganma company is completely unaware of the fact that the three criminal suspects forged company seals or signed contracts with the outside world, it will not bear civil liability; for example, the behavior of the three criminal suspects once caused the public to blame the Laoganma company. The suspicion of operating or debt-servicing ability has caused the Laoganma Company to suffer losses. It can also file a lawsuit against the three criminal suspects for infringement of goodwill.

  Through the "Funny Goose Injustice", the legal community focused on the legal issue of "representation agency". It refers to the fact that although the actor has no right of agency, the counterparty has reason to believe that the actor has the right of agency and engage in legal actions with him, and the legal consequences of his actions are borne by the agent. Zhu Yicong said that in light of the police report, the three suspects may be suspected of fraud, contract fraud, and the falsification of company seals. Although they are suspected of criminal offenses, the contracts they signed may not be invalid. If the court finds that the contract is valid and judges the actions of the three criminal suspects based on the facts, the Laoganma Company needs to bear contract liability with Tencent.

  Yao Haifang reminded that, in the face of the first time to conduct business contacts, Tencent not only failed to check the information and authorization of the parties, but also did not require the other party to pay the deposit or make installments in the contract, which is a mistake in the contract risk control. I hope this case Let business operators take it as a warning. (Finish)