The ruling of the Intermediate People’s Court of Foshan City, Guangdong Province is as follows:
Civil Judgment
(2004) Fo Zhong Fa Min Er Zai Zi No. 15
Protest organ: Guangdong Provincial People’s Procuratorate.
Original appellant in the second instance (defendant in the first instance): Yang Sufang, female, born on August 25, 1968, Han nationality, living in Room 602, Building D, Yifu Plaza, Huangqi Town, Nanhai District, Foshan City.
Original respondent in the second instance (plaintiff in the first instance): Qian Yuyuan, male, born on March 15, 1958, Han nationality, from Taipei City, Taiwan Province, living at 24 Changsha Street, Wanhua Caiyuan Village, Taipei City, 2 Section No. 150.
Agent: Liu Shixian, lawyer at Guangdong Tonglida Law Firm.
Defendant in the original trial: Zhang Jialin, male, Han nationality, Taiwanese, unknown address.
In the case of the franchise contract dispute between Yang Sufang, Zhang Jialin and Qian Yuyuan, the (2002) Fo Zhong Fa Min Er Zhong Zi No. 290 Civil Judgment issued by this court on May 6, 2003 has become legal. Potency. Yang Sufang was dissatisfied with the judgment and applied for a protest to the procuratorial organ. On July 14, 2004, the Guangdong Provincial People's Procuratorate filed a civil protest with the Guangdong Provincial Higher People's Court. On August 16 of the same year, the Guangdong Provincial Higher People's Court ordered this court to retry the case. This court formed a separate collegial panel and held a public hearing on February 28, 2005. Yang Sufang and Qian Yuyuan’s attorney Liu Shixian attended the court and participated in the lawsuit. Prosecutors Xu Xia and Qian Fangyuan of the Foshan Municipal People's Procuratorate appeared in court on behalf of the protest agency to support the protest. Because Zhang Jialin's address was unknown, he did not appear in court to participate in the lawsuit after being summoned by public notice. This court conducted a trial in absentia in accordance with the law. The case has now been concluded.
The retrial found that in 1998, at the request of her relative Zhang Jialin, Yang Sufang applied for a business license for the Huangqi Tea Yanguanshe Bubble Black Tea House (hereinafter referred to as Huangqi Teahouse) from the industrial and commercial department in Huangqi, Nanhai. On August 18, 1999, Zhang Jialin and Huang Qi Tea House (Party A) and Qian Yuyuan (Party B) signed the "Cha Yan Guan She Taiwan Bubble Black Tea Franchise Store Agreement" and the "Commodity Supply Contract". The franchise store contract stipulates: Party A owns the design patent rights for the name, appearance design, internal furnishings and other design rights of the "Chayan Guanshe" store and the unified management rights of operation, technology, training and services. Party B, as a franchisee, will open a branch in Fangcun. Party A charges a patent royalty of 60,000 yuan; Party B must receive training from Party A before opening the business. The raw materials and technologies used in the operation are provided by Party A. All supplies such as packaging, labels, clothing, etc. are of the style specified by Party A. , in order to unify the "Tea Yan Guanshe"; the contract is valid for two years; in addition, the contract also stipulates other rights and obligations, liability for breach of contract, etc. The "Commodity Supply Contract" makes specific agreements between the two parties on the supply of raw materials. On the same day, Qian Yuyuan paid NT$500,000. On August 24, Qian Yuyuan and Zhang Jialin made a supplementary agreement: Qian Yuyuan would hand over NT$300,000 to Zhang Jialin, and Zhang Jialin would be fully responsible for Qian Yuyuan's opening of a franchise store in Fangcun. The first payment for the raw materials supplied by Zhang Jialin must be paid upon delivery, and thereafter on the 25th of each month. In September, Qian Yuyuan paid 230,000 yuan to Zhang Jialin, and Zhang Jialin prepared for Qian Yuyuan to open a store. In early October, Zhang Jialin delivered the branch, and Qian Yuyuan started business and purchased raw materials from Zhang Jialin. On November 5, Zhang Jialin and Huang Qi Teahouse issued receipts, respectively confirming receipt of RMB 230,000 in decoration fees, purchasing fees, and miscellaneous expenses from Qian Yuyuan, and NT$500,000 in franchise fees and wealth-generating equipment. In mid-November, due to the inability to apply for a business license and other reasons, the Fangcun branch ceased operations. During this period, *** purchased 7,285.5 yuan of raw materials from Zhang Jialin, 222 yuan of which was paid, and the remaining balance of 7,063.5 yuan was unpaid. On April 5, 2000, Qian Yuyuan sued, requesting confirmation that the franchise store contract was invalid, and requiring Yang Sufang and Zhang Jialin to return the franchise fee, start-up fee, and decoration fee of *** RMB 222,030.5 and NT$ 500,000, and to compensate for part of the economic losses. About 21211.7 yuan. After the first-instance judgment came into effect, Yang Sufang applied to the first-instance court for a retrial on the grounds that the judgment procedure was illegal.
The defendant in the original trial, Zhang Jialin, refused to appear in court to respond to the lawsuit without justifiable reasons after being legally summoned, and a default judgment was made in accordance with the law. In accordance with Article 6 of the "Commercial Franchise Management Measures (Trial)", Article 58, Paragraph 1 (5), Article 61 of the "General Principles of the People's Republic of China and Civil Law" and Article 61 of the "People's Republic of China" **In accordance with the provisions of Articles 130 and 184 of the Civil Procedure Law of the People's Republic of China, the judgment is: 1. The Civil Judgment No. 795-1 of Nanhai District People's Court of Foshan City (2000) Nanjing Chuzi shall be revoked. Items 1 and 2; 2. Uphold the Civil Judgment No. 795-1 of the Nanhai District People's Court of Foshan City (2000) Nanjing Chuzi No. 795-1; 3. The defendant Zhang Jialin in the original trial shall pay RMB 222,936.50 within the date when the judgment takes effect. and NT$500,000 shall be returned to the plaintiff in the original trial, Qian Yuyuan; 4. The defendant in the original trial, Yang Sufang, shall bear joint and several liability for the above debts; 5. The plaintiff in the original trial, Qian Yuyuan, shall within 30 days from the date when this judgment becomes legally effective, the plaintiff in the original trial, Qian Yuyuan, shall transfer the debts listed in the appendix within 30 days from the date when this judgment becomes legally effective. The items were returned to the two defendants in the original trial. The original trial acceptance fee was 8,214 yuan and the appraisal fee was 500 yuan. The original plaintiff Qian Yuyuan was responsible for 438.64 yuan of the acceptance fee. The original trial defendants Zhang Jialin and Yang Sufang were responsible for 7,775.36 yuan of the acceptance fee and the appraisal fee was 500 yuan.
Yang Sufang was dissatisfied with the first-instance and retrial judgment and appealed to this court. In the second instance, this court held that: judging from the rights and obligations between the parties stipulated in the franchise store contract, the contract is actually a franchise contract, so this case is a franchise contract dispute. In this case, Yang Sufang and Zhang Jialin are natural persons. They used Huangqi Tea House, an individual business owner, as a franchisor to recruit franchisees, which obviously did not meet the requirements of the State Administration for Industry and Commerce and the former Ministry of Domestic Trade for franchisees. Although the franchise store contract violates the regulations of the ministries and commissions of the State Council and does not violate the provisions of laws and administrative regulations, the current laws and administrative regulations cannot exhaust all contract situations, and more regulations are adjusted through the regulations of ministries and commissions. Therefore, A franchise store contract cannot be deemed valid simply because it does not violate the provisions of laws and administrative regulations. Instead, the validity of the above-mentioned contract should be analyzed and judged by linking the provisions of laws and administrative regulations. Based on this, the franchise store contract is invalid. The main fault for causing the contract to be invalid lies with Yang Sufang and Zhang Jialin, and the franchise fee and other payments they received should be returned to Qian Yuyuan. However, Qian Yuyuan did not check whether Huangqi Tea House had the qualifications to be a franchisor before signing a franchise store contract with it. He was also at fault for invalidating the contract. Therefore, his own expenses for opening a franchise store should be borne by him. As for the raw materials used, The unpaid amount should be deducted from the money returned by Yang Sufang and Zhang Jialin. In addition, Qian Yuyuan also returned the items purchased by Yang Sufang and Zhang Jialin to open the Fangcun branch. As for the question of whether Qian Yuyuan’s entrusted agent is qualified. During the second instance, Qian Yuyuan had gone through the notarization procedures in accordance with legal procedures, appointed Liu Shixian and Liu Jia as his authorized agents, certified the authority of the agent, and confirmed that the acts committed by the authorized agent within the scope of authorization were recognized, so his agent's Qualifications are adequate. In summary, Yang Sufang's appeal is unreasonable and should be dismissed. The facts found in the first instance and retrial are clear and the applicable law is accurate and should be upheld. In accordance with the provisions of Article 153, Paragraph 1, Item (1) of the Civil Procedure Law of the People's Republic of China, the verdict is: the appeal is dismissed and the original judgment is upheld. The second-instance case acceptance fee was 8,214 yuan, which was borne by Yang Sufang.
Based on Yang Sufang’s application for retrial, the Guangdong Provincial People’s Procuratorate lodged a protest with the Guangdong Provincial Higher People’s Court with the Guangdong Provincial People’s Procuratorate (2004) Protest No. 396. The procuratorial organ protested and argued that the final judgment was wrong in determining that the contract was invalid based on administrative regulations. Based on Article 52 of the Contract Law and Article 4 of the Supreme People's Court's Interpretation of Certain Issues Concerning the Application of the Contract Law. If the final judgment determines that the contract is invalid based on laws or administrative regulations, the legal or administrative regulatory basis should be stated. Article 124 of the Contract Law stipulates: For contracts that are not expressly provided for in this Law or other laws, the provisions of the General Provisions of this Law shall apply, and reference may be made to the most similar provisions of this Law or other laws.
The franchise contract involved in this case is an unnamed contract that is not clearly stipulated in the contract provisions and other laws. However, the content of the rights and obligations agreed upon by both parties involves the transfer of technical secrets and patent implementation licensing contracts under the Contract Law. Similar regulations should be followed as mentioned above. contract is processed.
This court's retrial held that: Article 9 of the "Contract Law of the People's Republic of China" stipulates that when entering into a contract, the parties shall have the corresponding capacity for civil rights and capacity for civil conduct. From the nature of the franchise contract and the purpose of signing the contract, the licensor of the franchise contract should have unique and teachable management techniques such as registered trademarks, trade names or products, patents, good business performance and certain business resources. The ability to provide long-term business guidance and services to franchisees. The licensor in this case, Huangqi Tea House, is an individual business owner with 6 employees and a capital of only 50,000 yuan. When signing the agreement, he had not yet obtained the trademark registration certificate, did not have good business performance, and did not have the qualifications to submit the trademark to the licensee. Ability to provide guidance. Therefore, Huangqi Tea House does not have the necessary capacity as a licensor of the franchise contract. Since the subject of the contract is not qualified, the "Franchise Store Contract" and the "Commodity Supply Contract" should be invalid according to law. The original trial's determination of the nature of the contract was correct and the division of fault responsibilities between the parties was appropriate and should be upheld; however, the validity of the contract was found to be inappropriate based on the regulations of the ministry and commission and should be corrected. The grounds for protest by the protest agency are insufficient and this court will not support it. Accordingly, after discussion and decision by the Judicial Committee of this court, in accordance with the provisions of Article 184 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:
This court upholds (2002) Fo Zhong Fa Min Er Zhong Zi Civil Judgment No. 290.
This judgment is final.
Presiding Judge Huang Xuehu
Acting Judge Jiao Yan
Acting Judge Huang Wei
April 20, 2005 Day 2
Secretary Huang Zhimin