Applicant (plaintiff of first instance and appellant of second instance)
Applicant for retrial): Changsha Zhenshanmei Advertising Decoration Co., Ltd., address: Changsha Evening News Avenue 1 Building 176, legal representative: Li Jianxiong.
Chairman, tel:131870873980731-82192859.
Respondent (defendant in first instance, appellee in second instance, and respondent in retrial): Ningbo Bull Electric Appliance Co., Ltd.
Address: Cidong Binhai District, Longshan Town, Cixi City, Ningbo City, Zhejiang Province, legal representative: Ruan Liping.
, executive director, tel: 0574-6366 100.
The applicant refuses to accept (20 14) Chang Chu Zi No. 01624 made by Changsha Intermediate People's Court on May, 2005 1 1; The second instance of Hunan Provincial High Court (20 15) Xiang San Zhong Zi No.95; The Supreme People's Court (20 15) Retrial of Civil Ruling No.3569 by Shen Minzi
. According to Articles 208 and 209 of the Civil Procedure Law, the Civil Procedure Supervision Rules of the People's Procuratorate
Thirty-fourth, according to the law to the Hunan Provincial Higher People's Procuratorate to the Supreme People's Procuratorate protest.
I. Required items:
1. Request the Supreme People's Procuratorate to lodge a protest with the Supreme People's Court, revoke the above-mentioned judgment and ruling, review the civil retrial application filed by the applicant, and support the applicant's retrial request according to law.
2. According to Article 2 19 of the Criminal Law, the crime of requesting infringement of trade secrets; Article 22 1, damaging commercial reputation; Article 226, illegal act of forcing transactions; Article 263 and Article 274, investigate and deal with the criminal violations of Ningbo Bull Electric Appliance Co., Ltd. for the crime of extortion.
3. Request to supervise all procedures in this case.
Second, the facts and reasons:
The applicant refused to accept the second-instance judgments of Changsha Intermediate People's Court (20 14) Chang No.01624 and Hunan Provincial High Court (20 15) Xiang San Zhong Zi No.95 on May 5, 2005. Compensation for direct and foreseeable losses of RMB 265,438+096,5438+0,000; Reputation, reputation loss of 500,000 yuan, rights protection, consultation, transportation and evidence collection of 654.38+million yuan, totaling 310.44 million yuan; In addition, the estimated loss from February to July of 20 15 1 increased by 584,500 yuan (116,900 yuan× 5 months), totaling 3,688,900 yuan. If there is any delay, it shall be calculated as delay;
2. Before ordering the respondent to stop the monopolistic infringement and restore the sole legal distribution right of the applicant in Changsha 1, 20 15;
3. Ordering the respondent to publish an apology statement approved by the applicant in People's Daily for three consecutive days;
4, ordered the respondent to bear all the litigation costs of the first and second trials;
5. Support the applicant's claim for second instance according to law, and increase the expected loss from July 15 to June14,000 yuan (1/6,900 yuan× 6 months), totaling 4.39 million yuan.
Remarks: Due to the date delay, the above retrial request 2 is amended as "Order the respondent to stop the monopolistic infringement before 20 16 12 3 1 and restore the sole legal distribution right of the applicant in Changsha.
; Retrial request 5 is amended as "order compensation for expected loss of 2 104200 yuan (1 16900 yuan × 16+0 16).
The Supreme People's Court conducted a review according to the applicant's request for retrial, and believed that the main reasons for the applicant's application for retrial were: (1) The first and second trial procedures in this case were illegal. 1.
The trial organization of the first instance was illegal, and the people outside the case returned to Yu to participate in the trial in violation of the rules, which reflected in the judgment the trial content that was obviously unfavorable to the retrial applicant. 2.
The first and second trials of this case deprived the retrial applicant of his right to defense. (two) the application of law in the judgment of second instance is wrong. 1.
The retrial applicant has made it clear in the first instance that the litigation dispute is a vertical monopoly between the operator and the counterpart who does not have a competitive relationship, and it is only necessary to prove the specific commodity market where the vertical monopoly behavior involved occurs. The relevant market of vertical monopoly is the specific range of goods traded by both parties, which has nothing to do with other similar goods. Therefore, the relevant market in this case is Changsha bull market. 2.
The dealer strategic cooperation agreement involved in this case is itself a format monopoly agreement. 3.
Even if the second trial finds that the respondent does not have a dominant market position, according to the judicial interpretation of the Anti-Monopoly Law, it does not mean that it is not a monopoly dispute that cannot be decided from the perspective of fairness and justice according to law; Monopoly civil litigation is applicable to all civil procedure laws, and the court should safeguard the legitimate rights and interests of the parties in accordance with legal fairness and justice. Besides, this case is purely a vertical monopoly case. 4.
The essence of determining market dominance in vertical monopoly is to determine whether the two parties are specific transaction counterparts. In this case, the defendant and the courts of first and second instance all admitted that the brand owner or controller had control over the brand he operated. In this case, the specific commodity is the product that the respondent authorized the retrial applicant to distribute. The applicant for retrial and the respondent belong to a specific relative relationship, but they make a judgment that is completely contrary to the provisions of Article 17 12 1 (3), (4) and (5) of the Anti-monopoly Law, which is obviously contradictory.
The Supreme Court holds that the focus of the dispute in this case is: whether the first and second trial procedures are illegal; First, whether the law applied in the judgment of second instance is correct. Upon examination, the first and second trial procedures are legal and the applicable laws are correct. Reject the applicant's application for retrial.
The applicant believes that it is necessary to prove whether the first and second trial procedures of this case are illegal; Whether the applicable law is correct or not focuses on the following five points:
(1) If the legal relationship of abuse of market dominance in this case is not established, and the court of first instance knows that Zhenshanmei Company has evidence and its rights and interests have been seriously infringed by Ningbo Company, can it not file a case on the grounds that the legal relationship is not established, directly reject Zhenshanmei Company's claim and not refund the legal fees? Or tell Zhenshanmei Company to change the lawsuit request and try it again or try it according to the actual cause of action after the trial?
(2) The civil litigation request filed by Zhenshanmei Company along with the lawsuit.
After the court accepted and collected the legal fees, it ignored the case and refused to refund the legal fees. What is the legal basis for the company to sue alone? Can Zhenshanmei Company sue separately? If the case that the court should hear cannot be prosecuted in court, can it petition the government departments such as the procuratorate, the people's congress, and the discipline inspection, and the society, the media, and the internet supervise the rights protection? If not, how to safeguard the rights and interests of Zhenshanmei Company?
(iii) The Supreme Court held that: 1. Did the court of first instance inform Zhenshanmei Company in writing immediately after the collegial panel was formed to hear the case, and Zhenshanmei Company never raised the issue that the organization of the first-instance trial was illegal during the first and second trials? 2. The personnel outside the case of Huiyu participated in the interrogation of the unilateral party of Zhenshanmei Company, and the trial transcript obtained by fraudulent means that was obviously unfavorable to Zhenshanmei Company was taken as the main basis for the judgment of this case. Is it legal? 3. Are there any other illegal procedures in the first instance?
(4) 1.
At the first trial, the main defense evidence presented by the defendant was perjury, and the company planted it in court, which obviously violated the rules of the court, and the evidence provided by the plaintiff against the defendant was hidden by the courts of first and second instance, and no sanctions were imposed according to law. Is it suspected of illegally shielding the defendant? 2.
The Supreme Court held that the judgments of the first and second instance in this case failed to identify some relevant evidence submitted by the parties in the course of litigation and did not fully respond to their relevant written arguments. The lack or even error of the judgment reasons caused by it is only related to the substantive trial and has nothing to do with the procedural violation. What is the legal basis for not thinking that the parties are deprived of the right to defense?
(5) Zhenshanmei Company claims that this case is a vertical monopolistic behavior without competition, and only bears the burden of proof for the specific commodity market where the monopolistic behavior involved occurs. Is there a lack of legal basis? Is there no factual and legal basis for Zhenshanmei Company to claim that Ningbo Bull Company abuses its dominant market position?
The applicant believes that regarding the above (1), Zhenshanmei Company sued Ningbo Bull Company in Changsha Intermediate People's Court on 20141.5, which lasted for 7 days.
2014112 Changsha intermediate people's court "upon examination, the case of the dispute between Zhenshanmei Company and Ningbo Bull Electric Appliance Co., Ltd. on abuse of market dominance meets the statutory acceptance conditions" (the acceptance notice is attached). After accepting the case, Ningbo Bull Company raised a jurisdictional objection on the grounds of not abusing the dominant market position, which was rejected by the court of first instance. However, in the final instance, the first instance rejected the claim of Zhenshanmei Company on the grounds that Ningbo Bull Company did not have the legal relationship of abusing its dominant market position, and did not refund the legal fees charged. Therefore, whether this case conforms to the legal relationship of abuse of market dominance is the first instance, and it is also the first instance to say that it does not conform. Zhenshanmei company doesn't know much about it? Secondly, if it does not conform to this civil legal relationship, according to Article 1 19 of the Civil Procedure Law, there is no legal relationship as long as it falls within the scope of accepting cases in civil litigation. Article 136 of the Civil Procedure Law stipulates that when a people's court hears a civil case in public, it shall announce the names of the parties, the cause of action and the time of the hearing three days before the hearing. Therefore, it is not important whether the plaintiff writes the cause of action or not and whether the cause of action is correct. The final decision shall be made by the court of first instance when it accepts the examination according to law, without affecting the substantive trial after the court accepts the case. Even if the first instance thinks that the cause of action of the legal relationship identified at the time of filing the case is improper, according to the second paragraph of Article 65 of the Civil Procedure Law, the people's court determines the evidence that the parties should provide and its time limit according to the litigation request of the parties and the trial of the case; Rules of proof
Article 35. In the course of litigation, if the nature of the legal relationship or the effectiveness of the civil act advocated by the parties is inconsistent with the determination made by the people's court according to the facts of the case, the people's court shall inform the parties that they can change the litigation request and provide evidence before making a judgment. According to the law, the first instance should refer to the relevant laws and make a judgment according to the legal relationship cases identified in the trial. It will not let Zhenshanmei Company "lose the wife and lose the soldiers (legal fees)" suffer double losses. But the fact is: the first trial held that the legal relationship was in line with the nature, requiring Zhenshanmei Company to pay all the acceptance fees, and then denied it at the trial. After being denied, he was forced to quote legal provisions to make a judgment based on the legal relationship at the time of filing the case. It can be concluded that the court of first instance abused judicial power and perverted the law, which constituted the legal fees paid by the company that obtained unjust enrichment. Secondly, according to the interpretation of Article 335 of the Civil Procedure Law, basic facts refer to the facts used to determine the subject qualification of the parties, the nature of the case, civil rights and obligations, etc., which have a substantial impact on the original judgment or ruling. Article 390. In any of the following circumstances, it shall be deemed that the original judgment or ruling is indeed wrong in applying the law: (1) the applicable law is obviously inconsistent with the nature of the case; (2) The determination of civil liability obviously violates the agreement of the parties or the legal provisions. Therefore, in the first and second trials, are the basic facts unclear, or are the laws wrongly applied, or are the laws intentionally perverted? Please be careful.
(2) When Zhenshanmei Company sued, other civil claims filed together were accepted and collected by the court, but the case was not accepted and the legal fees were not returned. What is the legal basis for Zhenshanmei Company to sue alone? Can Zhenshanmei Company sue separately? If the case that the court should hear cannot be prosecuted in court, can it petition the government departments such as the procuratorate, the people's congress, and the discipline inspection, and the society, the media, and the internet supervise the rights protection?
The applicant believes that according to Article 52 of the Rules of Civil Evidence and Article 20 1 of the Interpretation of the Civil Procedure Law, there can be multiple independent civil claims with different legal relationships in the same case. According to Articles 1 19 and 123 of the Civil Procedure Law. (1) as long as it has a direct relationship with the plaintiff; (2) Having a clear defendant; ③ Specific claims and factual reasons; (4) Belonging to the scope of civil litigation accepted by the people's court and the jurisdiction of the sued people's court. Therefore, when prosecuting, as long as the above four points are met, no matter how many independent civil claims there are, the court must accept them. In this case, points ①, ② and ③ are all facts and need not be elaborated. ④ Interpretation according to Articles 39 and 232 of the Civil Procedure Law. After the court of first instance examined the objection to jurisdiction, the case did not violate the provisions of hierarchical jurisdiction and exclusive jurisdiction. There is no question of jurisdiction in this case. Therefore, the court of first instance in this case should hear the plaintiff's claim within the scope of any civil legal relationship. According to article 153 of the Civil Procedure Law, "when the people's court hears a case, some facts are already clear, so it can make a judgment on this part first". Therefore, even if it is not clear whether this case constitutes an abuse of market dominance in the first and second trials, the plaintiff's other claims should be judged first, and there is no separate prosecution. Of course, it is still unclear whether the courts of first and second instance will accept or reject the claims of Zhenshanmei Company other than abusing its dominant market position. If it is not accepted, there is no so-called "separate prosecution"; If it is not accepted, it will constitute dereliction of duty in accordance with the law, violating Article 123 of the Civil Procedure Law, and it is impossible to collect legal fees related to this, otherwise it will constitute unjust enrichment. If it is accepted, "the acceptance must be justified", but the courts of first and second instance did not hear it, and also asked Zhenshanmei Company to sue separately, suspected of abusing judicial power and committing litigation fraud against Zhenshanmei Company. Even more fatal, if accepted, according to Article 36 of the Civil Procedure Law, the people's court that filed the case first shall not transfer the case to another people's court that has jurisdiction. If the people's court finds that other people's courts with jurisdiction have filed the case first before filing the case, it shall not file the case repeatedly. Article 247 of the Interpretation of the Civil Procedure Law stipulates that if a party files a lawsuit again in the course of litigation or after the judgment takes effect, it constitutes repeated prosecution. If the parties repeatedly sue, the ruling will not be accepted. Therefore, the courts of first and second instance have no right to refuse to hear the lawsuit according to law, let alone require the applicant to file another lawsuit, and other courts cannot accept the lawsuit. The applicant shall not bring a lawsuit to the court of first instance repeatedly. Therefore, it is impossible for the applicant to file another lawsuit in any court for this claim. Article 5 of the Constitution stipulates that "all violations of the Constitution and laws must be investigated." Is it just a decoration? In the same way, it is absurd and impossible for the Supreme Court to ask Zhenshanmei Company to sue other civil claims without legal basis. Furthermore, according to Article 124 (1) of the Civil Procedure Law, if the case falls within the scope of administrative litigation, the plaintiff shall be informed to bring an administrative lawsuit; (3) Informing the plaintiff to apply to the relevant authorities for settlement of disputes that should be handled by other organs according to law; (5) If a party files a lawsuit in a case where a judgment, ruling or conciliation statement has become legally effective, it shall inform the plaintiff to apply for a retrial. Therefore, firstly, secondly, it is a misinterpretation of the law for the Supreme Court to ask Zhenshanmei Company to sue for rights protection on the grounds of different legal relations. Different legal relationships in civil litigation refer to administrative litigation legal relationships that are beyond the scope of civil litigation legal relationships before another lawsuit can be filed. The right of independent claim can only be claimed by other organs outside the court system. Therefore, this case can no longer be prosecuted in any court. According to the law, we can only apply to the Supreme Court for an explanation to cancel this judgment and revise it in accordance with the second paragraph of Article 407 of the Civil Procedure Law. Otherwise, according to the third provision of Article 124 of the Civil Procedure Law, Zhenshanmei Company can only apply to the government departments such as the Procuratorate, the National People's Congress and the Commission for Discipline Inspection for supervision and rights protection, and apply to social media and the Internet for supervision and rights protection.
(iii) The Supreme Court held that: 1. Did the court of first instance inform Changsha Zhenshanmei Company in writing immediately after the collegial panel was formed to hear the case, and Zhenshanmei Company never raised the issue that the organization of trial in first instance constituted an offence during the first and second trials? 2. The personnel outside the case of Huiyu participated in the interrogation of the unilateral party of Zhenshanmei Company, and the trial transcript obtained by fraudulent means that was obviously unfavorable to Zhenshanmei Company was taken as the main basis for the judgment of this case. Is it legal? 3. Are there any other illegal procedures in the first instance?