Wuxi Court released the 11th typical case of 2017

vSource: Wuxi New Media Network

Foreword

As an organ that represents the state’s special court trials, the people’s courts should not only assert the right and wrong, punish the evils, promote the good, settle the disputes, but also make a “legitimate and reasonable” judgment on each of the living cases, thus maintaining social health. Harmony, stability and progress.

Wuxi Court has vigorously promoted the complicated and diverted project to digest a large number of cases while not forgetting the "fine case strategy" and cultivating a large number of well-known national cases. The 11 typical cases launched this year involve the service supply side reforming the overall economic situation, supporting local ecological civilization construction, establishing market fair competition rules, maintaining the integrity of trade order, promoting harmonious labor relations, cracking down on new types of crimes according to law, promoting family virtue traditions, and strengthening We will implement various aspects such as resolving difficulties and severely punishing false lawsuits. These typical cases play an important role in unifying the standards of law enforcement, leading the mainstream value of socialism, and promoting the awareness of the rule of law in the society. They are not only a collection and response to current hot issues, but also a comprehensive review of the judicial functions of the city courts, showing Wuxi’s The enthusiasm and wisdom of the judges actively participating in social governance embodies the unremitting efforts and unrepentant pursuit of all police officers in the court to achieve social fairness and justice.

1. Market-oriented recruitment and reintegration of investors to ensure that the homeowners have their own homes

Wuxi Fulongcheng Real Estate Development Co., Ltd. Bankruptcy Reorganization Case

(1) Basic case

Wuxi Fulongcheng Real Estate Development Co., Ltd. is a private enterprise engaged in real estate development and operation. Before the reorganization, it is developing and constructing a real estate project “Hongmei Xintiandi” (also known as “Pre-County Huafu”). Due to the break of the capital chain and the deterioration of the operating conditions, the real estate project could not be completed and delivered on schedule, and the operation was in trouble. The buyers had filed lawsuits and continued to petition the relevant departments, showing the signs of mass incidents. On August 15, 2016, the Executive Board of Wuxi Intermediate People's Court ruled that the execution of Fulongcheng Company was suspended and transferred to bankruptcy review; Wuxi Intermediate People's Court Financial Court analyzed the market trend of Wuxi property market and the operation status of the real estate involved in the project, in 2016. On September 12, it was decided to accept the bankruptcy liquidation of Fulongcheng Company, and it was transferred to reorganization on November 14 of the same year.

In order to smoothly carry out the reorganization process, the administrator announced the recruitment reorganization investor announcement three times. The last recruitment refers to the public bidding method, that is, the selection rules are preset in the recruitment announcement, and the scoring system is selected to select the highest scorer as the reorganization investor, and the expert consultant (non-interested real estate enterprise management personnel, field) is invited. The real estate enterprise bankruptcy administrator), creditor representatives, and buyers' representatives are members of the bid evaluation committee to score. In the end, Nanjing Urban Construction Development (Group) Co., Ltd., controlled by Greenland Group, won the bid for the solvency plan of 470 million yuan and the feasible sustainable operation plan, and was determined to be the investor. Under the guidance of the court, the administrator actively communicated with the creditors and formulated a reorganization plan with fairness, feasibility and legitimacy. On August 7, 2017, the second creditor meeting of Fulongcheng Company's reorganization case was held. At the meeting, all the voting groups voted through the draft reorganization plan. All 128 creditors who attended the meeting voted in favor. After the reorganization plan was passed, Wuxi Intermediate People's Court approved the reorganization plan based on the application of the manager.

(2) Typical meaning

This case is the first case of Wuxi Intermediate People's Court and the first bankruptcy case of “execution to bankruptcy + liquidation to reorganization + real estate”. First of all, good social results have been achieved. Up to hundreds of owners, creditors, and original shareholders have no objection to the draft reorganization plan. The creditors' meeting and the investor meeting have all passed the vote, and there is no only one in the history of bankruptcy reorganization in the country, and finally the reorganization is successful. Successfully settled debts of 1.45 billion yuan, of which 100% of employee claims and engineering claims were compensated, and more than 100 buyers bought new homes, achieving a win-win situation in both legal and social effects. Second, innovation and improvement of the trial method. Through the implementation of two ingenious procedures for bankruptcy, liquidation and reorganization, after the accurate ranking of real estate bankruptcy rights conflicts, the market-oriented recruitment of re-investors was adopted, and public bidding was conducted. Debt prices also compete for business plans. Therefore, in the judges, there are representatives of creditors, representatives of owners, experts in the real estate industry, and experts in the bankruptcy of housing enterprises, ensuring the maximization of the interests of creditors. Finally, the legislative purpose of the new "transfer and break" procedure in civil litigation was realized. The case has truly played the role of bankruptcy, and solved the problems that cannot be solved by bankruptcy: execution can only change prices on the spot, and the debts can be settled individually and indefinitely; the debts can not be settled intensively, and the contradictions of the parties can be balanced; Solve the problem of home buyers and promote corporate regeneration and social stability.

Court hearing: Wuxi Intermediate People's Court

Collegiate Chamber: Gong Tian Hua Minjie Zhang Wei

Second, strictly review environmental public interest litigation withdrawal standards to ensure complete environmental restoration

Wuxi Municipal People's Procuratorate of Jiangsu Province v. Seven Districts of Shanghai Municipality, Greening and City Appearance Administration, etc.

(1) Basic case

In May 2015, a certain district greening and city appearance authority (hereinafter referred to as a city appearance bureau) handed over some domestic garbage to Xu Moumou, and Xu Moumou dumped more than 2,000 tons of domestic garbage to Wuxi through Xu. Huishan District is on the bank of a river, causing serious pollution to the surrounding environment. After the Xishan District Court of Wuxi City, the court made a judgment on the relevant criminal proceedings, and sentenced Xu Moumou, Xu Mou and other imprisonment, and fined the crime, to recover the illegal income. After the judgment came into effect, the Wuxi Municipal People's Procuratorate filed an environmental civil public interest litigation, requiring the responsible person to bear the emergency disposal costs and environmental restoration costs of the environmental pollution involved in the case, etc. 2094649.16 yuan. The court announced the acceptance of the case according to law, entrusted professional institutions to monitor the current situation of the polluted environment, and formed an expert group to conduct on-the-spot investigation, demonstration and revision of the "Environmental Remediation Technology Program" and announced it. After the environmental restoration work is completed, the professional organization will be commissioned for later monitoring, and the expert argumentation will be organized again, and local representatives will be invited to hold a hearing to ensure the realization of environmental restoration goals. At the same time, the relevant competent authorities actively urged the responsible person to fulfill their obligations and cooperate with the completion of environmental restoration, urged the responsible person to bear all expenses, and actively paid the environmental restoration cost of 2094649.16 yuan, and adopted a series of rectification measures to prevent such incidents from happening again. After the public interest litigation prosecutor Wuxi Municipal People's Procuratorate, the application for withdrawal of the lawsuit was filed on the grounds that all the claims were fulfilled.

The court held that the application for withdrawal of the lawsuit filed by the people's procuratorate for public interest litigation should be granted. In this case, Wuxi Municipal People's Procuratorate, based on the fact that some garbage is not from Xu and Xu, advocates the proportion of garbage, and the emergency disposal cost of illegal transportation and disposal of domestic garbage is 1,460,179.16 yuan, in line with the Chinese people. Provisions of Article 67 of the Law of the Republic of Tort Liability. In the lawsuit, the cost of implementing the ecological environment restoration project is 476,070 yuan, the environmental restoration plan issuance cost is 150,000 yuan, the follow-up monitoring cost is 3,000 yuan, and the expert demonstration fee is 5,400 yuan. All of them belong to the ecological environment restoration and the necessary expenses for repairing the environment. The polluter bears. The Wuxi Municipal People's Procuratorate claimed that the defendant should bear the above-mentioned various expenses totaling 2094649.16 yuan, in line with relevant laws and regulations. The fee has been paid by the defendant and it should be assumed that it has assumed full liability for the contaminated area.

Since the ecological environment of the contaminated area involved has been repaired, the defendant has assumed the responsibility for compensation, and the litigation request of the public interest litigator Wuxi Municipal People's Procuratorate has been fulfilled. And the application for withdrawal of the lawsuit was approved by the Supreme People's Procuratorate and the relevant approval procedures were fulfilled. Therefore, the court ruled that the public interest litigant should be allowed to withdraw the lawsuit in accordance with the first paragraph of Article 145 of the Chinese People's Republic of China Civil Procedure Law.

(2) Typical meaning

The case is an environmental civil civil interest litigation case filed by the first procuratorial organ with the administrative organ as the defendant. It is also an extended case of the “first case of the criminal case of dumping domestic garbage in East China”. The case explored the trial process and characteristics of civil public interest litigation cases with administrative organs as defendants, clarified the equal status of both parties in civil cases, and reaffirmed the basic principles of polluters' responsibility for environmental restoration. In particular, this case explored the judicial review requirements for the withdrawal of public interest litigation, and for the first time clarified the substance of the “all litigation claims have been fulfilled” in environmental public interest cases, including the realization of environmental restoration objectives and the possibility of eliminating environmental violations. At the same time, in order to ensure the full realization of environmental public welfare, the case discussed in detail the issues of public participation and professional security in the environmental remediation process, and listened to it through announcements, commissioned professional organizations before and after monitoring, expert argumentation, hearings, etc. Professional strength and suggestions and opinions of the public. Many pioneering attempts in the case have explored effective trial ideas for similar cases.

Court hearing: Wuxi Intermediate People's Court

Collegiate Chamber: Zhou Ke Jiang Yicheng Guo Jiguang

Third, counterfeit international brand-name chocolate was severely punished to demonstrate the equal protection of intellectual property rights

Zhang Moumou and other eight people sell counterfeit "Doff" and "Ferrero" registered trademarks and illegally manufacture and sell counterfeit registered trademarks

(1) Basic case

From September 2014 to December 2015, Zhang Moumou proposed to collude with Wang Moumou and Xu Moumou to jointly fund the use of “Duffy DOVE” registration without the permission of the registered trademark owner. Trademark, produced and produced chocolate in a rubber and plastics factory in Wuhu, Anhui, and sold it. The total amount of illegal business was 2.17 million yuan. From October to December 2014, Hong Moumou, Xu Moumou and Qian Moumou knew the king. The products of "Doff" chocolate purchased by XX and Zhang are still sold to others, and the sales amount is more than 1.3 million yuan; from September to November 2015, Huang XX has not registered trademark owner. In the case of authorization, 50,000 pieces of plastic wrapper with the registered trademark of “FERREROROCHER”, 50,000 sets of base paper and more than 1 million round stickers are illegally manufactured, and the above trademarks are more than 100,000 yuan. The price is sold to Wang. The cost of these fake chocolates is 360-380 yuan / box, the price is 440-550 yuan / box, almost half of the genuine wholesale price.

The court held that all the allegations of the public prosecution agency were true. Zhang Moumou and others sold a large number of fake international brands such as “Doff” and “Ferrero” to supermarkets and retail complexes in Jiangsu, Zhejiang and Anhui through fake and fake sales. The huge amount of illegal business has seriously damaged the corporate image of overseas brands in the Chinese market.判 The crimes of counterfeiting registered trademarks were respectively sentenced to the defendant Zhang Moumou, Wang Moumou, Xu Moumou, Hu Moumou, 5 years, 5 years, 4 years, 1 year probation for two years, respectively, a fine of 1.85 million yuan, 174 Ten thousand yuan, 1.63 million yuan, 10,000 yuan; the defendant Xu Moumou, Hong Moumou, Qian Moumou were sentenced to 4 years, 3 years probation for 5 years, 3 years probation for 5 years for the crime of selling counterfeit registered trademarks. The fines were 350,000 yuan, 300,000 yuan and 200,000 yuan respectively; the defendant Huang Moumou was sentenced to 3 years' imprisonment for 3 years and fined 40,000 yuan for illegally manufacturing and selling illegally manufactured registered trademarks. At the same time, four probation officers are prohibited from engaging in the production, sales and manufacturing of chocolate during the probation period.

(2) Typical meaning

The case was listed by the Ministry of Public Security as a “Sword Action” supervision case involving two internationally renowned trademarks, “Doff” and “Ferrero”. The case was also the only one of the “Top Ten Cases of Intellectual Property Protection in 2016-2017” organized by the Jiangsu Court of Justice under the Quality Brand Protection Committee of the China Association of Enterprises with Foreign Investment. From the court to the verdict, it has attracted the attention of dozens of media in the world. "Chinadaily" ("China Daily" English version) "Legal Daily" "China Intellectual Property" and its English version, China News Network, Xinhuanet and other well-known media have reported on the trial and judgment of the case, People's Daily, CCTV Finance, etc. The domestic authority WeChat public number simultaneously pushed the news link and related analysis of the case.

According to the law, the people's courts should comprehensively consider the illegal income of the crime, the amount of illegal business operations, the losses caused to the right holders, the social harmfulness, etc., and impose fines according to law. The amount of fines is generally determined to be less than one time and five times less than the illegal income or less than 50% or more of the illegal business amount. The amount of illegal business reflects the scale and volume of the crime. The amount of the final fine can not be determined only by the amount of money the defendant makes. Even if there is no illegal income, the amount of illegal business itself confirms the seriousness of the illegal act. In judicial practice, the accused usually defends himself and the illegal income is often lower than the actual illegal income. Due to the concealment of crime, the possibility of cash transactions, and insufficient evidence, the public prosecution agency cannot fully investigate the actual illegal income of the defendant. In this case, the criminal upstream and downstream industrial chain has become a scale and system, forming a one-stop production and sales, and involves many provinces and cities across the country. Therefore, the court comprehensively used many factors in the whole case as the basis for calculating the amount of illegal business, which reflected the concept of the court's strict attack. The strict sentence of the case also reflects the determination of the judicial department of our country to equally protect the right holders at home and abroad.

Court of Appeal: Wuxi Xinwu District People's Court

Collegiate Chamber: Liu Bowen Cai Zhuojun (People's Jury) Gu Qiuying (People's Jury)

4. Reasonable determination of the boundary of competition restrictions to protect the freedom of employment of workers

Zhang Moumou and a company's non-competition dispute case

(1) Basic case

On June 1, 2015, Zhang Mou signed a labor contract with a company engaged in health care, nutrition and health consultation, fitness and other services, and agreed to work in the management position and the corresponding salary and labor period. Later, Zhang Mou signed a "Competition Limitation Agreement" and a "Non-Disclosure Agreement" with the company, stipulating that Zhang Moumou shall not engage in business with a company in any form or identity for any two years after the company leaves the company. In case of violation of the non-competition obligation, the company has the right to request Zhang to pay 500,000 yuan in liquidated damages; Zhang’s inventions, technical secrets or other reasons arising from the performance of his duties or the use of material and technical conditions, business information, etc. of a company Trade secrets, the relevant intellectual property rights are enjoyed by the company. If Zhang XX violates the confidentiality agreement, the liquidated damages shall be paid in one lump sum of 500,000 yuan.

From February 7 to 8, 2016, Lu, a chairman of a company, repeatedly negotiated technology shares with WeChat and Zhang. Due to the disagreement between the two parties, Zhang Mou proposed to cancel the "Full-time Labor Contract" signed by the "Full-time Labor Contract" and the "Non-Disclosure Agreement". After obtaining the consent of Lu, Zhang did not go to work. On October 21st of the same year, a company applied for notarization of the push content of the WeChat public account of “Wuxi Difante Fitness Club”. Among them, Zhang, a chief rehabilitation engineer, graduated from the Department of Sports Medicine of Chengdu Sport University, specializing in rehabilitation training, functional training and manual therapy for sports injuries. After the notarization, a company sued and demanded that Zhang compensated for 500,000 yuan in breach of non-competition restrictions and 500,000 yuan in breach of confidentiality agreement.

The court held that the employer may stipulate the non-competition clause in the labor contract or confidentiality agreement for the laborer who has the duty of confidentiality, but the competition restrictions