Under normal circumstances, the two parties did not actually perform the contract, and the company did not package the live broadcast for you, and paid various fees for you. The court or arbitration will not support excessive liquidated damages.
On the contrary, if you have been delaying the termination of the contract, the longer it takes, the harder it will be to terminate the contract or reduce the liquidated damages. When trying such cases, the court or arbitration commission will generally take the actual loss of the company as the basis, comprehensively consider the contract term and performance, the strength of the contracting status of both parties, the subjective fault of the anchor, the economic value and profitability of the anchor, the reasonable expectation of the company to continue to perform the contract, the economic cost of obtaining benefits, the cost of safeguarding rights of the company and other factors, and determine the amount of liquidated damages in accordance with the principle of fairness and good faith.
The anchor of the reference case canceled the contract in advance and was sentenced to bear the penalty of 2 100 yuan.
On May 27th, 2020, a company signed an agreement with Gao for artists' performing arts agency, stipulating that the company is the exclusive performing arts agency in Gao's world. The cooperation period is from June, 2020 1 day to September, 2020 1 day. Upon the expiration of the cooperation, unless either party sends a written notice of termination to the other party in advance, this agreement will automatically continue for five years, and so on. ..... After the expiration of the contract, if Gao notifies the company in writing to terminate this agreement, the company has the priority to renew the contract within one year after the expiration of the contract under the same cooperation conditions; Gao confirms that he knows that the company needs to invest a lot of manpower and material resources to perform this agreement, so Gao promises that if this agreement is terminated or dissolved in advance due to high reasons, Gao will not engage in any performing arts activities or sign any written documents related to performing arts activities with any subject outside the company within two years from the date of termination or dissolution of this agreement. ..... After the signing of this Agreement, no party may change or dissolve this Agreement without authorization, except under the agreed circumstances; In case of high violation of this agreement, it shall pay the company a penalty, which is the higher of the following three calculation methods: a) 654.38+00000 yuan; B) The company's nearly 65,438+02 months during the contract period in which the high default occurred is the total of the monthly average platform income obtained by the company multiplied by the remaining months of cooperation (if the performance is less than 65,438+02 months, it shall be calculated according to the monthly average income in the actual performance period); C) Five times the sum of all profits obtained from the Company and/or its affiliated companies in case of high default. If the aforesaid liquidated damages are insufficient to make up for the economic losses of the company, the company shall compensate for the economic losses.
After Gao proposed to terminate the contract, the two parties failed to reach an agreement through negotiation, and the company filed a lawsuit in the court of first instance:
1. ordered to pay a penalty of RMB 65,438+10,000;
2. Order Gao to cancel the "XXX" live broadcast number (XXX 1) and "XXX2" live broadcast number (XXX3) of Aauto Quicker;
3. In this case, the notary fee is 5292 yuan, the attorney fee 1 10,000 yuan, the operation fee is 30,000 yuan, and the brokerage fee10.2 million yuan.
Yuan, live dividend of 2 100 yuan, traffic coupon of 2,000 yuan and training fee of 2,000 yuan shall be borne by Gao.
The court of first instance held that:
1. Contracts established according to law are protected by law. In this case, the artists' acting brokerage agreement signed by both parties involves entrustment, punishment, intermediation, copyright ownership, education and training, etc. This is not a simple entrustment contract.
2. During the performance of the contract, Gao clearly expressed his intention to terminate the contract through WeChat. The staff of the company did not raise any objection to this, but just said "OK, go through the process" and withdrew the corresponding live broadcast number by canceling the contract. Since then, the company has not provided any services or other cooperation to Gao. Considering that the staff member was responsible for contacting the company before and after the contract was signed, the staff member's feedback on Gao's request to terminate the contract should be presumed to be the company's intention, and the company's process was not the way agreed by both parties to terminate the contract, so it should be considered that the contract was terminated by agreement on June 29, 2020.
3. The text of the agreement between the two parties is provided by the company. If the available evidence shows that both parties have not negotiated Article 6.2 of this Agreement, it shall be regarded as a standard clause. This clause borrows from the mode of non-competition clause in the labor contract. Under the premise that both parties only cooperate for a short time and the company does not provide non-competition compensation, it is invalid to prohibit Gao from participating in performing arts activities for a long time, which excessively aggravates Gao's responsibility. In addition, the early termination of the contract due to high reasons agreed in this clause is inconsistent with the actual situation agreed by both parties. Therefore, the court did not support the company's request for Gao to pay liquidated damages.
Judgment of first instance:
Reject all claims of the company.
Our company refuses to accept the judgment of first instance and appeals:
1. Revoke the first-instance judgment and change the judgment to support the company's litigation request;
2. First, the legal costs of second instance shall be borne by Gao.
The court of second instance held that:
1. The Artist's Performing Arts Brokerage Agreement signed by the company and Gao is the expression of the true meaning of both parties and does not violate the prohibitive provisions of laws and administrative regulations. It should be legal and valid, and both parties should perform it according to the contract.
2. Regarding whether Gao pays liquidated damages.
The company appealed that Gao was the breaching party and should pay liquidated damages. In this regard, the court believes that the two parties signed an artist performing arts brokerage agreement on May 27, 2020, which was higher than that on June 29, 2020. This agreement is terminated due to high reasons, so high belongs to the breaching party.
After the signing of the agreement, the company gave guidance on the naming, mapping and live broadcast skills of the high live broadcast number, and fulfilled the relevant contractual obligations. Therefore, Gao, as the breaching party, should pay the corresponding liquidated damages to the company. At the same time, according to Article 6.2 of the Artist's Performing Arts Agency Agreement, if this agreement is terminated or dissolved early due to high reasons, Gao shall not engage in any performing arts activities or sign any written documents related to performing arts activities with any subject outside the company within two years from the date of termination or dissolution of this agreement. And when Gao proposed to terminate the contract, the employees of the company also told Gao that "it can't be broadcast live within two years, and if it is broadcast live, the company will be held accountable". Therefore, after the termination of the contract, Gao used the "XXX" (XXX1) live broadcast number on "Aauto Quicker", which also violated the relevant provisions of the agreement and there was a breach of contract. To sum up, the company's demand for high payment of liquidated damages was established, and our hospital supported it, but the amount of liquidated damages was too high, so our hospital adjusted it. Considering the length of time when both parties signed the agreement, the time when Gao proposed to terminate the contract and the dividends paid by Gao, the court ruled that Gao paid the company a penalty of 2 100 yuan.
The company's demand for high notarization fee of 5,292 yuan, lawyer's fee 1 10,000 yuan, operation fee of 30,000 yuan, brokerage fee10.2 million yuan, flow coupon of 2,000 yuan and training fee of 2,000 yuan is unfounded, and our hospital will not support it.
The court of second instance ruled that:
First, cancel the judgment of first instance;
2. Pay a penalty of RMB 265,438,000 to the Company within seven days after this judgment comes into effect;
Three. Reject the company's other claims.
A trial number: (2020) Jing 0 108 Early Republic of China 47339.
The case number of second instance: (202 1) Jing 0 1 103 13.