Zhou Qi, reporter of China Economic Weekly
Tencent sued Laoganma incident again waves.
On July 1, the Shuanglong Branch of the Guiyang Public Security Bureau issued a notice saying that after preliminary investigation, three suspects had pretended to be Laoganma staff to sign a cooperation agreement with Tencent in order to obtain the online game gift package code presented by Tencent in the promotion activities. The suspected crime has been criminally detained.
Previously, in the case of Tencent v. Laoganma Service Contract Dispute, the People’s Court of Nanshan District, Shenzhen, Guangdong ruled to seize and freeze Laoganma’s 16.24 million yuan property, which triggered heated discussions among netizens.
Now, the announcement of the Guizhou police confirmed that Tencent was indeed "deceived". What should be done with the ruling of the Nanshan District Court? Why did the Nanshan District Court fail to identify that the contract was forged? Has Tencent really never lost a lawsuit in the Nanshan District Court?
If the case is a criminal case, the court shall refer it to the public security organ
The documents of China Judgment Document Network show that the plaintiff Tencent filed a property preservation application with the Shenzhen Nanshan District Court, requesting the seizure and freezing of the defendants Guiyang Nanming Laoganma Flavor Food Sales Co., Ltd. and Guiyang Nanming Laoganma Flavor Food Co., Ltd. with a value of RMB 16.24 million yuan., Xinjiang Qianhai United Property Insurance Co., Ltd. Shenzhen Branch and PICC Property Insurance Shenzhen Branch provided credit guarantee for the property insurance in this case.
The People’s Court of Nanshan District, Shenzhen, Guangdong held that the plaintiff’s application complied with the law, and ruled to seal up and freeze the bank deposits worth 16.24 million yuan under the names of the defendants Guiyang Nanming Laoganma Flavor Food Sales Co., Ltd., Guiyang Nanming Laoganma Flavor Food Co., Ltd., or seal up or seize other property of equivalent value.
Zhang Zhengxin, a lawyer at Beijing Yingke (Tianjin) Law Firm, introduced that the civil ruling of the Nanshan District People’s Court ruling to preserve the property 16.24 million Laoganma Company does not mean that Tencent has won the case. Property preservation ruling and case victory are two different things. As long as the application for property preservation has a certain factual basis and provides guarantee, the court must make a timely ruling. Tencent has submitted the corresponding guarantee, and it is understandable that the Nanshan court has made a preservation ruling.
The first paragraph of Article 100 of the Civil Procedure Law stipulates that: In cases where the execution of the judgment may be difficult or cause other damage to the party due to the actions of one of the parties or other reasons, the people’s court may, upon the application of the other party, order the party to preserve his property, order him to perform certain acts or prohibit him from performing certain acts. The third paragraph stipulates: After the people’s court accepts the application, if the situation is urgent, it must make a ruling within 48 hours; if the ruling is to take preservation measures, it shall begin to execute it immediately.
Zhang Zhengxin believes that Tencent’s application to preserve the property of Lao Ganma worth more than 10 million yuan and the guarantee provided are urgent, so the Nanshan District People’s Court must make a timely ruling.
So, after the Guizhou police intervened and filed an investigation, is the ruling made by the Nanshan court still valid?
According to Zhang Zhengxin, Article 11 of the Supreme People’s Court’s Provisions on Several Issues Involving Suspicions of Economic Crimes in the Trial of Economic Dispute Cases stipulates that: If a case accepted by a people’s court as an economic dispute is not an economic dispute case and is suspected of economic crimes after trial, it shall rule to dismiss the prosecution and transfer the relevant materials to the public security organ or the procuratorial organ. "That is to say, if Laoganma successfully reports a criminal case, and the economic dispute is indeed a criminal case, the Nanshan court shall rule to reject Tencent’s lawsuit and transfer the relevant materials to the public security organ."
"It is estimated that Tencent will withdraw the case unless there are other details in the case. Because of the criminal investigation stage, many issues are still unclear. For example, whether these three people were originally employees of Lao Ganma, and they had come to represent Lao Ganma and Tencent before. If Tencent knew that they had been deceived before, it would definitely not sue. The follow-up will definitely be from the scammers," Zhang Zhengxin told China Economic Weekly.
Although Tencent’s winning rate is high, it has also passed through Maicheng
Previously, because Tencent repeatedly sued and won in the Nanshan court, it was jokingly called "Nanshan Pizza Hut" by netizens.
The China Economic Weekly reporter inquired about the China Judgment Document Network, and the results showed that among the cases officially decided by the Nanshan District Court, there were 4,533 cases related to Tencent Computer Systems Co., Ltd. Random browsing by China Economic Weekly found that many cases in which Tencent was the defendant, and the plaintiff eventually withdrew the case.
For example, in the top 10 search results, eight of the defendants were Tencent Computer Systems Co., Ltd., and the plaintiffs all applied for withdrawal, and the court ruled that the withdrawal complied with the regulations.
Tencent Technology, which often appears in the original/dock together with Tencent Computer Systems Co., Ltd., is more representative.
According to the reporter’s incomplete statistics, China Judgment Document Network has included 61 cases in which Tencent Technology has been the original/defendant of the Nanshan District Court since 2016. Among them, Tencent Technology has been the plaintiff in 55 cases and the defendant in 6 cases. Tencent Technology has basically won the case. In addition, there are 397 rulings related to Tencent Technology in the Nanshan District Court.
According to China Judgment Document Network, in the case where Tencent Technology and Tencent Computer Systems Co., Ltd. are the plaintiffs, there are many well-known companies such as Panda Entertainment, Hero Entertainment, and Ali Merchandise. Among them, Tencent and Ali have the largest number of cases over music copyright disputes, involving the largest amount. According to preliminary statistics, since 2016, Tencent Technology and Tencent Computer Systems Co., Ltd. have sued Ali Merchandise in Nanshan Court in no less than 18 cases, and the court has ruled that Ali Merchandise should pay compensation of not less than 2363.1 million yuan.
However, while Tencent’s legal team is powerful, there are times when it loses out.
In February 2019, the IT Home website published an article "Doing Social, Tencent Forced". Tencent believed that many of the contents of this article constituted slander, and then sued the Qingdao Intermediate People’s Court, requesting that IT Home publish an apology statement on its registered or operated IT Home and other media channels for 30 days, compensating Tencent for its economic losses and reasonable expenses totaling 3 million yuan.
After losing the case by the Qingdao Intermediate People’s Court, IT Home appealed to the Shandong Provincial Higher People’s Court. The Shandong Provincial Higher People’s Court held that IT Home’s comments were based on relevant reports by authoritative media, did not fabricate or disseminate misinformation and misleading information, and only made legitimate comments on Tencent’s business practices. Although some words were too sharp, they still belonged to the scope of comments and would not mislead the public. On May 14, 2020, the Shandong Provincial Higher People’s Court finally revoked the first-instance judgment and rejected Tencent’s lawsuit.
Regarding Tencent’s title of "Nanshan Pizza Hut", Zhang Zhengxin believes that any case has the possibility of losing, even the lawsuit filed by Tencent in the Nanshan court cannot reach 100% victory. The court must make a judgment based on facts and take the law as the criterion.