"Supreme People's Court Bulletin" 2020 Year 1 Qi
1 , Heilongjiang and Fujian Investment Group Co., Ltd. and to Xilin Iron and Steel Group Co., Ltd., a third party Liu Zhiping private lending disputes
Judgment summary : Whether the private lending contract has been established, effective and fully implemented, it should be judged from the signing to the performance of the contract. The lender should show evidence such as the loan contract, bank transaction records, and reconciliation records, and the relevant evidence should be mutually corroborated .
2. Liu Zhichao v. Tongfang Knowledge Network ( Beijing ) Technology Co., Ltd. for sale contract dispute
Judgment point : The minimum recharge amount clause unilaterally set by the operator not only violates the consumer's right to choose, occupy the consumer's funds for no reason, but also increase the burden on consumers when applying for a refund. Therefore, the minimum recharge amount The terms are standard terms that restrict the legitimate rights and interests of consumers. They are unfair and unreasonable provisions for consumers and should be deemed invalid.
3 . Beijing Oder Cleaning Services Limited Shanghai Branch v. Human Resources and Social Security Bureau case related injuries Changning District, Shanghai
Judgment summary : Employees should participate in work injury insurance, and paying work injury insurance premiums is a legal obligation of the employer, and it is not possible for the employee and the employer to negotiate to exclude the employer from the legal payment obligation. The determination of work-related injuries does not depend on whether the employer has paid work-related injury insurance premiums. If the employer fails to pay work-related injury insurance premiums in accordance with the law, the employee may request the employer to bear the corresponding work-related injury insurance benefits after being identified as a work-related injury.
Bulletin of the Supreme People's Court, Issue 2, 2020
4. Shenzhen Yizhifan Trading Co., Ltd. Hou Qingbin and Shenzhen Zhaobangji Group Co., Ltd., Shenzhen Kangnuof Information Consulting Co., Ltd., Shenzhen Liyumen Investment Development Co., Ltd., the third party Guangdong Lizhao Electronic Technology Co., Ltd. Company contract dispute case
The main point of the judgment : the establishment of the assignment guarantee should be before the expiry of the debt performance period , but for the realization of the assignment guarantee , referring to the provisions of Article 170 of the "Property Law of the People's Republic of China", it is necessary to satisfy the debtor's failure to perform the due debt or occurrence the case of realization of the rights of other conditions agreed by the parties . the parties in the contract and allow the establishment of security in the agreement , such as the value of the collateral is insufficient to cover the related debt , even if the debt performance period has not expired, the creditor is also entitled to claim the right to make and guarantee . The agreement does not violate the mandatory provisions of laws and administrative regulations and should be deemed legal and effective. In order to prevent the occurrence of situations similar to liquidity and exclusion, such as the difference between the value of the subject matter acquired by the creditor and the amount of the creditor's rights, the realization of the assigning security right should impose a liquidation obligation on the parties. The agreement reached by both parties on the value of the subject matter of the guarantee can be regarded as an effective way to determine the value of the subject matter. In the case where the value of the subject matter of the transfer guarantee has been determined, but both parties anticipate that the amount of the creditor's rights may change, the parties shall still perform the corresponding liquidation obligations on the basis of the final settlement of the debt.
5. Case of dispute over infringement of invention patent right between Lianqi Development Co., Ltd. and Shanghai Baoye Group Co., Ltd.
Judgment summary : Both the patent infringement litigation and the patent infringement litigation based on the same fact are independent litigations. In judicial practice, how to determine the jurisdiction of the above two types of cases should follow the basic laws and characteristics of judicial activities, adhere to the principle of " dual convenience " , and not all need to be transferred to jurisdiction for combined trial. As for whether there is a conflict between the above two types of cases being tried by different courts, because their appeals are handled by the Intellectual Property Court of the Supreme People's Court, this possible problem can be resolved through the appeal mechanism.
6. Tang Xuefu, Pang Hua and Hefei Jianxin Real Estate Development Co., Ltd. in the case of liability guarantee for payment of defects. The main point of the judgment : When buying or selling a house that is still under lease, the seller should inform the buyer of the content of the house lease contract, but the lessee’s ability to perform the contract It belongs to the category of commercial risk and does not belong to the seller’s first contract obligation, and the buyer should review and bear it on its own. The property right of the house changes during the lease, unless the parties have a special agreement, the rent belongs to the buyer from the date of the change of the property right. After the property rights change, the people's court does not support the request of the buyer to bear the rent loss on the grounds that the seller has negligence in contracting and the delivery of the house is defective because it is difficult to collect the rent.
7. Zhu Zhaolong v. Dongtai City Xuhe Safety Equipment Infringement Liability Case
Judgment point : If a personally-run Taobao shop is bound to a corporate business license and then changed to an enterprise-type shop, although it is still operated by an individual, the information disclosed by the Taobao shop is all the corporate information, which results in that the Taobao shop actually belongs to the enterprise The appearance of ownership rights. In the case that the enterprise no longer allows the binding and the binding cannot be cancelled, the enterprise obtaining the management right of the Taobao store by itself does not constitute an infringement of the personal management right. In view of the individual's contribution to the credit upgrade of the online store, the enterprise should give appropriate compensation to the original operator in accordance with the concept of fairness and the principle of balance of interests while taking back the right to operate the store.
8. Zhou Xingchi v. Zhongjian Rongzhen Wuxi Building Materials Technology Co., Ltd. for dispute over the right of portrait and name
Judgment summary : In a foreign-related personality rights infringement dispute, if both parties invoke the same law and have not raised an objection to the application of the law, the people's court can determine that the parties have made a consistent choice on the applicable law of the civil relationship. When the right of name and portrait have the right to be used commercially, the parties only claim on the basis of the Tort Liability Law, and the moral interests and property value of the personality right can be protected together, including attorney fees that are reasonable expenses. Should be included in the scope of damage compensation for personality rights. When determining the amount of compensation, the people's court should consider the type of right, the method of infringement, the degree of infringement, the status of the infringed and the infringer, economic situation, profitability, type of fault, and other circumstances.
Bulletin of the Supreme People's Court, Issue 3, 2020
9. Jilin Xincheng Real Estate Comprehensive Development Co., Ltd. and Tang Dongpeng housing sales contract dispute case
The main point of the judgment : The people's court examines the validity of the contract and clarifies it according to its powers, which is the basis for guiding the parties to correct litigation. If the debtor fails to pay off the debt due, and reconciles with the creditor to repay the debt with a house, the "House Purchase Contract" signed by both parties shall be legal and effective.
10. Yancheng Tianzi Food Co., Ltd. v. Yancheng Water Supply Co., Ltd. Judgment of water supply contract dispute : In the water supply contract relationship, the water supply company’s obligations to install, replace, maintain water meters and supply water are a public service . The water user passively accepts the water meter and measurement results. Before and after the water meter was replaced, it was counterintuitive that the water meter showed that the water used for production had increased significantly when the production volume of the water side was basically unchanged and there was no pipe running water failure. For disputes arising from this, the people's court should make a comprehensive judgment on the facts of the case and determine the calculation method and the amount of loss in a fair and reasonable manner based on the principle of evidence in civil litigation and the rule of daily experience.
Bulletin of the Supreme People's Court, Issue 4, 2020
11. Case of dispute over loan contract between Shanghai Pudong Development Bank Co., Ltd. Shenzhen Branch and Meizhou Mediterranean Hotel Co., Ltd.
Judgment summary : Entrusted loans are included in the scope of national financial supervision, and financial institutions perform corresponding duties as lenders. On the other hand, they are similar to private lending due to their source of funds and other characteristics, reflecting the difference between financial borrowing and private lending in different aspects. Features. In the absence of clear provisions in the current laws and judicial interpretations, it is possible to determine the rules that can be referred to by analyzing the characteristics of entrusted loans that are more similar to financial loans or private loans. Given that the entrusted loan is based on the principal’s will to determine the loan object, amount, term, interest rate and other main contract terms, and the principal has the main rights of the contract such as loan interest income, while taking into account that the entrusted loan and private lending are based on the same source of funds It can also be presumed that the cost of funds is roughly equivalent to that when the people's court determines the upper limit of the interest rate of the entrusted loan contract, it should refer to the relevant rules of private lending.
12. Yongan City Yan and Zheng Yaonan Prudential Real Estate Development Co., Ltd., Far East ( Xiamen ) Real Estate Development Co., Ltd. Li Zhen Gao and the third a third party withdraw the complaint case
Judgment summary : The third party as an ordinary creditor generally does not have the cause of filing a third-party cancellation lawsuit based on the creditor’s rights, but if the debtor’s relevant property disposal behavior confirmed by the effective judgment meets the conditions for the right of cancellation as stipulated in Article 74 of the Contract Law , The creditor who has the right of revocation in accordance with the law has a legal interest in the results of the effective judgment case, and thus has the qualifications of the plaintiff to initiate a third-party revocation lawsuit as a third party without independent claim rights.
13. Cai Yulong v. Nanjing Jinzhongjian Curtain Wall Decoration Co., Ltd. labor contract dispute case
Bulletin of the Supreme People's Court, Issue 5, 2020
14. China Great Wall Asset Management Co., Ltd. Shanxi Branch and Shanxi Shuozhou Pinglu District Huamei Ao Chongsheng Coal Industry Co., Ltd. and other loan contract disputes
Judgment summary : In the maximum guarantee contract relationship, if the contract clearly stipulates that the maximum amount of creditor's rights guaranteed includes the amount of the principal creditor's rights and the corresponding interest, liquidated damages, damages and costs for the realization of the creditor's rights, the guarantor shall pay the interest in accordance with the agreement. , Liquidated damages, damages, and the costs of realizing the creditor’s rights shall bear the guaranty liability, and are not limited by the amount of the principal creditor’s rights.
15. Foshan Shunde Midea Electric Manufacturing Co., Ltd. and washing Foshan City, Science and Technology Electric meters have utility model patent infringement and other disputes Limited
Judgment summary : In a patent infringement dispute case, the accused infringer provided evidence to prove that the alleged infringing technical solution belongs to the existing technology, and thus asserting that his behavior does not constitute patent infringement, constitutes a prior art defense.
In view of the prior art evidence earlier than the patent filing date, for the maintenance of effective judgment of res judicata, standardized rank litigation order to avoid litigation aerial raid on the patentee and the first, second instance proceedings, to guide the party in full first, second instance proceedings defense, resolve disputes, for alleged infringer in the retrial proceedings first prior art proposed secondary defense and evidence, should be reviewed.
Bulletin of the Supreme People's Court, Issue 6, 2020
16. Zhou Changchun v. Chuang Shiwei China Investment Co., Ltd., Li Shiwei, Peng Zhenjie and the third party Hunan Hanye Real Estate Development Co., Ltd. in a liability dispute over the company’s interests
Judgment summary : When it can be proved that the company agency that has the legal right to file a lawsuit on behalf of the company basically does not have the possibility of filing a lawsuit, and it is meaningless for the plaintiff to perform the pre-procedures, it is not appropriate to claim that shareholders have not fulfilled Article 151 The pre-procedures stipulated in the article dismissed the prosecution.
17. Zou Moulei v. Gao Mou, Sun Mou, Chen Mou statutory inheritance dispute case
Judgment summary : In a divorce, if one of the stepparents expressly does not continue to raise the stepchild who has been educated, it shall be deemed that the relationship between the stepparent and the stepchild has ceased. At the time of the death of a stepparent , the people’s court shall not support the legal inheritance of the stepparent’s inheritance on the grounds of the “ stepchildren with custody relationship ” stipulated in the inheritance law .
18. Changchun Taiheng Housing Development Co., Ltd. and Changchun City Planning and Natural Resources Bureau state-owned land use right transfer contract dispute case
The main point of the judgment : If the contract signed by the parties cannot be performed due to the promulgation of national laws, regulations and policies, and the purpose of signing the contract by several parties cannot be realized, the people's court shall support it if the party requests the court to terminate the contract. Since both parties have no fault in the failure to perform the contract and the failure of one party to achieve the purpose of the contract, it is possible to judge only the refund of the paid price and the corresponding fruits in accordance with the provisions of Article 97 of the Contract Law of the People’s Republic of China. The litigation request of the party requesting the other party to compensate for the losses is not supported. The deed tax losses paid by one party for the performance of the contract can be shared equally by both parties based on the principle of fairness, provided that both parties have no fault in the termination of the contract involved.
19. Fudian Bank Co., Ltd. Dali Branch vs. Yang Fengming and Dali Jianbiao Real Estate Development Co., Ltd. outsider enforcement objection case
Judgment summary : The guarantor and the creditor bank agree to set up a margin account, and deposit a certain amount of margin in proportion to perform certain guarantee obligations. The guarantor may not use the margin without consent, and the creditor bank has the right to directly deduct the relevant money from the account , And agreed on the guarantee period, etc., it should be determined that the two parties agree to pledge money. The specificization of the funds in the margin account is not equal to the immobilization. As long as the fluctuations of the funds correspond to and are related to the margin business and are not used for daily settlement, it should be determined to comply with the Supreme People’s Court’s "Regarding the Application of the Guarantee Law of the People’s Republic of China" The “Interpretation” stipulates that the money is specified in the form of a special account in Article 85. If the creditor bank actually controls and manages the margin account, it shall be determined that it has met the requirements for possession of pledged money.