In the story of "Funny Goose", not only ordinary people eat melons, but also Tencent's competitors.
On July 1st, today's headline user Li Liang, who was certified as the vice president of byte beating, posted a message on his personal micro-headline account: "The basic facts have not been investigated, and the public prosecution method can be directly used, and the other party has successfully frozen 16 million. Yuan! This shows that this company has formed a daily thinking that uses public inspection to combat all that is not conducive to it, and it is simplified to the point that even the investigation is too lazy to investigate."
The incident pointed to by Li Liang was Tencent's application for property preservation to the court, requesting the seizure of more than 16 million yuan of assets frozen by Lao Ganma.
Recently, a civil ruling issued by the People’s Court of Nanshan District, Shenzhen, Guangdong Province shows that the plaintiff Tencent has filed an application for property preservation to the court due to a dispute over the company’s service contract, requesting the seizure and freezing of the defendant Guiyang Nanming Laoganma Flavor Food Sales Co., Ltd., Guiyang The property of Nanming Laoganma Flavor Food Co., Ltd. is worth RMB 16.24600 million.
The above application was approved by the court, and the payment date of the "Rules" is April 24, 2020.
On June 30, Tencent introduced to the surging news reporter that this matter was that the old godmother put 10 million yuan in advertising in Tencent, but ignored the contract's long-term arrears and unpaid, Tencent was forced to sue in accordance with the law and apply for asset preservation.
However, on the evening of June 30, Laoganma issued a statement saying that the company received relevant legal documents on June 10, "After verification, our company has never cooperated with Tencent or authorized others to cooperate with Tencent. Mom's brand signed the "Joint Marketing Cooperation Agreement", and our company has never conducted any commercial cooperation with Tencent."
On July 1st, Guiyang Public Security Shuanglong Branch further informed the case, characterizing the incident as "three suspects forged the official seal of Laoganma, posing as a cooperation between Laoganma and Tencent, and defrauding Tencent's game package". The application for property preservation of assets has become particularly "embarrassing".
One of the focuses of external doubt is how Tencent successfully applied for the ruling to freeze the assets of more than 16 million yuan of Lao Ganma? In the face of such a “national brand” of Lao Ganma, tens of millions of yuan of disputes, is it necessary for Tencent to apply for property preservation, and is there “excessive force”? As a target of property preservation, the old godmother did not have the opportunity to defend, but received the relevant legal documents on June 10th?
The reporter of www.thepaper.cn learned from the interview that property preservation before litigation refers to the fact that an interested party’s legal rights and interests will be irreparably damaged by not applying for property preservation immediately due to the emergency situation. Apply to the people's court for a property preservation measure taken by the people's court.
Attorney Ji Yufeng, a partner of Huiye Law Firm, told reporters: "Popularly speaking, the plaintiff is worried about the defendant's transfer of property or the property of the defendant may deteriorate before the prosecution. Therefore, he will apply to the court first. A procedure to seal up, detain and freeze the defendant’s property."
So, in the face of an extremely well-known and normal operating company like Laoganma, is it necessary for Tencent to apply for pre-litigation property preservation?
In this regard, Tencent did not provide further explanation. However, the lawyer mentioned that in practice, property preservation before litigation will also be used to exert pressure on the insured party. Ji Yufeng cited, for example, the common detention of ships in maritime disputes, that is, the use of pre-litigation property preservation (detainment of ships) to force the other party to reduce losses (ship demurrage is very expensive every day), either provide guarantees or be forced to negotiate reconciliation.
As for the phenomenon that Lao Ganma seems to be "in the dark" during this incident, Yu Chao, a lawyer of Jingheng Lawyer Shanghai Office, told Peng Mei News that the purpose of preservation is to prevent the defendant from transferring property during the litigation process. After the judgment comes into effect, there is no enforceable property, so the court cannot contact the defendant.
"It's easy to understand that if the judge contacts the other party, and the other party transfers a sum of money, the judge will be unable to argue: Is it because the judge's phone transferred the other party's property?" The verification by the applicant is part of not knowing the practice. "Lawyer Ji Yufeng said.
Why did the court decide to approve Tencent's application?
Ji Yufeng analyzed that the court did not conduct a substantive examination at the trial stage at this stage, but a procedural examination, whether the application items on the application form complied with the law, etc.
On the morning of July 2nd, in response to Tencent’s lawsuit against Laoganma’s advertising dispute, a staff member of the Research Office of the People’s Court of Nanshan District, Shenzhen, Guangdong responded to the surging news that the case was being further investigated and a notice will be issued in response to the results. Social concerns.
Ji Yufeng said that in practice, in order to prevent some litigation participants from using false evidence to defraud property preservation before litigation, my country's laws have also set up corresponding thresholds and stipulated corresponding criminal and civil responsibilities. "Once the preservation error causes the respondent to lose, the respondent has the right to claim compensation from the claimant."
Here is a detailed interpretation of the lawyer:
1. What is pre-litigation property preservation?
Attorney Ji Yufeng, a partner of Huiye Law Firm, introduced to Pengpai reporters that the so-called pre-litigation property preservation refers to the fact that the interested parties will be irreparably damaged by irreparable damage to their legal rights and interests if they do not immediately apply for property preservation due to emergency situations. Before applying to the people's court, a property preservation measure taken by the people's court.
Generally speaking, the plaintiff is worried about the defendant's transfer of property or that the defendant's property may deteriorate, threatening future execution before prosecuting, so he first applied to a court to seal, seize, and freeze the defendant's property. After the preservation procedure is completed, the applicant (plaintiff) should sue within the prescribed time, if not, the property preservation measures are lifted.
In addition, in practice, property preservation before litigation will also be used to exert pressure on the insured party. Lawyer Ji Yufeng said, for example, the common detention of ships in maritime disputes is to use the pre-litigation property preservation method (detention of the ship) to force the other party to provide a guarantee or be forced to reduce the loss (the ship demurrage is very expensive every day) Negotiation settlement.
Ji Yufeng said that property preservation before the lawsuit is fast, timely and convenient. If the Civil Procedure Law stipulates that the pre-suit preservation application is to be granted, the people's court shall make a ruling within 48 hours and start execution. This can more completely avoid the economic losses that may be caused to the interested parties due to disputes. Although the law stipulates that the execution should start within 48 hours, due to various factors, such as the lack of information about the respondent’s property provided by the applicant, the lack of manpower in the Executive Board, and the need to apply for approval for off-site execution, many courts have implemented enforcement in practice. The time will be more than 48 hours.
2. Does the court need to contact the defendant? Is there an obligation to review the authenticity of the material?
Lawyer Teng Yun, a senior partner of Zhonglun Wende Law Firm, said that the court will not contact the defendant before making a civil ruling on property preservation and during the process of implementing property preservation.
In addition, according to Article 103 of the Civil Procedure Law, “After the people preserve the property, the people’s court shall immediately notify the person who has preserved the property”. The general method is to send a civil ruling to the person who has preserved the property.
This may be the reason why Laoganma was informed of the relevant documents only after the property preservation ruling was made.
Attorney Yu Chao of Jingheng Lawyer Shanghai Office told reporters that the purpose of preservation is to prevent the defendant from transferring property during the litigation process. After the judgment takes effect, there is no enforceable property, so the court cannot contact the defendant.
Lawyer Ji Yufeng also said that in practice, once the defendant is contacted, the defendant is likely to be aware and transfer property.
"It's easy to understand that if the judge contacts the other party, and the other party then transfers a sum of money, the judge will be unable to argue: is it because the judge's phone that the other party transferred the property?"
"Therefore, accusing the judge of not verifying with the respondent in advance is part of not knowing the practice." Lawyer Ji Yufeng said.
But in the dispute between Tencent and Laoganma, the complicated factor is that Tencent cooperated with a "fake" Laoganma. According to Laoganma, Laoganma was informed of the relevant matters only after receiving the civil ruling of the court in June, and called the police.
The official WeChat account of Guiyang Public Security Ssangyong Branch issued a notice on July 1st. After preliminary investigation, it was suspects Cao Mou (male, 36 years old), Liu Mouli (female, 40 years old), and Zheng Moujun (female, 37 Years old) forged the seal of the old Ganma company, posing as the manager of the company's marketing department, and signed a cooperation agreement with Tencent.
In other words, the cooperation agreement between Tencent and "Lao Ganma" was stamped with a fake seal. So is the court obliged to review the authenticity of the cooperation contract before making a ruling to approve the application for property preservation?
In this regard, lawyer Ji Yufeng introduced that what the court conducted at this stage is not a substantive review at the trial stage, but a procedural review. What needs to be reviewed is: whether the materials are complete and meet the requirements; whether the application items on the application meet the legal requirements ; Whether the form of evidence materials (often copies) submitted by the applicant is in compliance; whether the evidence materials can initially support their application matters. Once the above conditions are fulfilled, the Executive Board of the Court shall make a ruling in accordance with the regulations.
The determination of the three natures of the evidence (authenticity, legitimacy, and relevance) is ultimately to be ascertained by the judge of the trial court during the substantive trial. When applying for pre-litigation property preservation, such requests cannot be made to the court.
"Specifically in this case, the judges of the case filing and execution courts were not capable of identifying whether it was a radish stamp within 48 hours. As long as they saw such a stamped document, the chapter was the chapter of the old goddess, and the content could corroborate the application. The description in is completed, and the formal review is completed. As for whether this chapter is a radish chapter, it is necessary for the judge and the police of the trial court to find out."
3. What to do if "freezing is wrong"?
The embarrassment now is that Tencent's high probability is that it is only after it has been approved that the property preservation application is approved that it has been "deceived". As a result, this ruling on property preservation is particularly embarrassing-how should it be cancelled? Does Tencent need to compensate Laoganma?
Lawyer Yu Chao said that interested parties of the property to be preserved may consider that the court’s preservation is improper or that the preservation is wrong, and may submit an application to the court for the termination of the preservation.
Lawyer Ji Yufeng said that in practice, in order to prevent some litigation participants from using false evidence to defraud property preservation before litigation, my country's laws also set up corresponding thresholds and stipulated corresponding criminal and civil responsibilities. For example, before applying for property preservation, you must submit a guarantee that meets the requirements of the court, or a letter of guarantee, to avoid the loss of the respondent due to the wrong application; if you provide false evidence to defraud the preservation ruling, you may be criminally suspected of false litigation; once the preservation The error caused the respondent to lose, and the respondent has the right to claim compensation from the claimant.
A well-known IT and intellectual property lawyer, Zhao Zuoqi, published an analysis on his personal Weibo. According to the provisions of the Civil Procedure Law, Tencent has the right to apply to the court for the preservation of Laoganma’s property, the purpose of which is to prevent judgments. It is difficult to implement, but it requires a guarantee to apply for property preservation. According to public information, Tencent provided a guarantee letter issued by an insurance company. If it is proved afterwards that there is a forged official seal and the promotion cooperation agreement is invalid, Tencent's property preservation application is wrong, and the insurance company should compensate the respondent, Laoganma Company, for the losses suffered by the property preservation.
The following is the timeline of the "Funny Goose Injustice" incident sorted out by the surging news reporters:
April 24
The People’s Court of Nanshan District, Shenzhen City, Guangdong Province issued a civil ruling, agreeing to the property preservation application filed by the plaintiff Tencent, and sealing and freezing the defendants under the names of Guiyang Nanming Laoganma Flavor Food Sales Co., Ltd. and Guiyang Nanming Laoganma Flavor Food Sales Co., Ltd. Bank deposits worth 16.24006 million yuan or other properties equivalent to seizure and seizure.
June 30
The above civil ruling was widely reported by the media.
Tencent explained to the dispute between the two parties that Laoganma placed 10 million yuan in advertising on Tencent, but ignored the contract’s long-term arrears and unpaid payments. Tencent was forced to sue according to law, apply for asset preservation, and the court ruled to freeze the other party’s business account.
According to Tencent, in March 2019, Tencent and Laoganma signed a "Joint Marketing Promotion Agreement". Tencent invested resources for Laoganma oil and pepper series promotion. Tencent has fulfilled its obligations in accordance with the contract, but Laoganma did not pay according to the contract. Tencent repeatedly urged to no avail, so it had to sue according to law. The case is currently in the court's specific trial process.
June 30
According to the First Financial Report, the person in charge of Laoganma responded: Tencent was cheated!
In a subsequent statement issued by Lao Ganma, Lao Ganma stated that: On June 10, the company received the relevant legal documents entrusted by the Nanshan District People's Court of Shenzhen City and entrusted by the People's Court of Nanming District, Guiyang City. Tencent cited the service contract dispute as the reason. Sued Laoganma and applied for property preservation. After receiving the above documents, the company attached great importance and immediately conducted an investigation, "After verification, our company has never signed a "Joint Marketing Cooperation Agreement" with Tencent or authorized others and Tencent on the "Laoganma" brand, and I The company has never conducted any commercial cooperation with Tencent."
July 1
The official WeChat account of the Guiyang Public Security Shuanglong Branch issued a police report: Recently, the bureau received a report from Guiyang Nanming Laoganma Flavor Food Co., Ltd., and some illegal persons pretended to be the company’s name and Shenzhen Tencent Computer System Co., Ltd. (hereinafter referred to as "Tencent" "Company") signed a cooperation agreement, resulting in prosecution by Tencent.
After preliminary investigation, the suspects Cao Mou (male, 36 years old), Liu Mouli (female, 40 years old), Zheng Moujun (female, 37 years old) forged the seal of the old Ganma company, posing as the company’s marketing department The manager, signed a cooperation agreement with Tencent, the purpose of which is to obtain the online game gift parcel code provided by Tencent in promotional activities, and then illegally obtain economic benefits through Internet reselling.
At present, Cao Mou and other three persons have been detained in criminal detention for suspected crimes, and the case is being further processed.
July 1
Tencent responded to the “cheated” issue on its official Weibo account: “In one word, it’s hard to say… In order to prevent similar incidents from happening again, netizens are welcome to provide similar clues and leave a message through comments or private messages. We pay for it and prepare a thousand bottles of old godmothers As a bonus, it also contains a limited edition orphan product."
Tencent provided a picture of Laoganma Hot Sauce, and the bottle showed the cooperation pattern of QQ Speed and Laoganma.
Surging News reporter Chen Yuxi