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Overseas Chinese International Investment Company v. Changjiang Films Company (Dispute over Contract on License of the Right to Distribute Films)
国际华侨公司诉长江影业公司影片发行权许可合同纠纷案
【法宝引证码】
  • Type of Dispute: IPR-->IPR Contract
  • Legal document: Judgment
  • Judgment date: 01-17-2002
  • Procedural status: Trial at Second Instance

Overseas Chinese International Investment Company v. Changjiang Films Company (Dispute over Contract on License of the Right to Distribute Films)
(Dispute over Contract on License of the Right to Distribute Films)
国际华侨公司诉长江影业公司影片发行权许可合同纠纷案
[核心术语]
发行权;合同主体资格;倒签合同;合同效力;漏瞒报行为;责任主体
[争议焦点]
1.无影片摄制与发行许可证的著作权人,是否具备签订发行许可合同的主体资格? 2.倒签合同是否影响合同效力? 3.发行方以各电影放映单位存在漏瞒报行为而主张免责,该行为的责任主体该如何认定?
[案例要旨]
发行权是指著作权人以出售或者赠与的方式向公众提供作品或其复制品的权利是著作权财产中的一项权利。我国《著作权法》规定著作权人可以自己行使或者许可他人行使其著作权并依照约定或者法律规定获得报酬。著作权人与他人签订发行许可合同的是许可他人行使其著作权的行为这符合我国著作权法的规定。由于著作权人在签订发行许可合同后并不直接参与制片、发行活动...
Overseas Chinese International Investment Company v. Changjiang Films Company (Dispute over Contract on License of the Right to Distribute Films) 国际华侨公司诉长江影业公司影片发行权许可合同纠纷案
Civil Judgment of the Supreme People's Court 最高人民法院民事判决书
No. 3 (2001) (2001)民三终字第3号
BASIC FACTS 
Appellant (Plaintiff in the first instance): Guangzhou Overseas Chinese International Investment Company, domiciled at 21st Floor, Guozi Building, No. 363 Dongfeng Middle Road, Guangzhou. 

上诉人(原审原告):广州国际华侨投资公司,住所地:广州市东风中路363号国咨大厦21楼。

Legal Representative: Luo Guangsheng, manager of the Company.

 法定代表人:罗广生,该公司经理。
Authorized Agent: Qiu Shengming, lawyer of Guangdong Justice Law Firm. 委托代理人:丘升明,广东佳思特律师事务所律师。
Authorized Agent: Feng Jun, lawyer of Guangzhou Z & T Law Firm. 委托代理人:冯骏,广州正平天成律师事务所律师。
Appellant (Defendant in the first instance): Jiangsu Changjiang Films Limited Liability Company, domiciled at No. 2 Huaihai Road, Nanjing. 上诉人(原审被告):江苏长江影业有限责任公司,住所地:南京市淮海路2号。
Legal Representative: Li Shihang, board chairman of the Company. 法定代表人:李士行,该公司董事长。
Authorized Agent: Guo Xiaohe, lawyer of Beijing Zhengping Law Firm. 委托代理人:郭小河,北京市正平律师事务所律师。
Authorized Agent: Gu Yongzhong, lawyer of Tianda Law Firm. 委托代理人:顾永忠,天达律师事务所律师。
With regard to the case under the dispute between Guangzhou Overseas Chinese International Investment Company (plaintiff in the first instance, hereinafter referred to as Investment Company) and Jiangsu Changjiang Films Limited Liability Company (defendant in the first instance, hereinafter referred to as Changjiang Company) over a contract on license of the right to distribute films, both Investment Company and Changjiang Company were dissatisfied with the No. 4 (1999) civil judgment of the Higher People's Court of Jiangsu Province (shortened as Jiangsu Higher Court hereafter), and appealed to the present court. After accepting the case, the present court formed a collegial panel according to the provisions of law, composed of Luo Dongchuan, associate director of the No. 3 civil division, as the presiding judge, judge Wang Yongchang and acting judge Zhang Hui, and then heard the case publicly on March 28, 2001. Later, the present court arranged for both parties to check the evidence on December 3, 4, 11, and 20, 2001 respectively. Wang Yanfang was the court clerk to make the records. Luo Guangsheng, legal representative of Investment Company, Qiu Shengming and Feng Jun, authorized agents of Investment Company, as well as Guo Xiaohe and Gu Yongzhong, authorized agents of Changjiang Company, appeared in the court and participated in the proceedings. The case has now been finalized. 原审原告广州国际华侨投资公司(以下简称投资公司)与原审被告江苏长江影业有限责任公司(以下简称长江公司)影片发行权许可合同纠纷一案,投资公司、长江公司均不服江苏省高级人民法院(1999)苏知初字第4号民事判决,向本院提起上诉。本院受理后,依法组成由民事审判第三庭副庭长罗东川担任审判长,审判员王永昌、代理审判员张辉参加的合议庭,于2001年3月28日公开开庭审理了本案,后又于2001年12月3日、4日、11日、20日组织双方当事人核对证据。法庭记录由书记员王艳芳担任。投资公司法定代表人罗广生、委托代理人丘升明、冯骏,长江公司委托代理人郭小河、顾永忠到庭参加诉讼。本案现已审理终结。
It was verified by Jiangsu Higher Court after trial that: 原审法院经审理查明:
(I) On the conclusion of contract and the contractual contents. Investment Company concluded an agreement with Nanjing Film Studio in August 1997, which sets forth that both parties shall cooperate with each other to shoot the film To Be Mother and Son Again in the Next Life (hereinafter referred to as Next Life), with the copyright to be owned by Investment Company, and Nanjing Film Studio shall take charge of determining the script of Next Life and submitting it to the competent department in charge and the State Film Administration for archival filing. Nanjing Film Studio held the “License for Film Production”. In May 1998, Investment Company and Changjiang Company reached an oral agreement after negotiation, setting forth that Investment Company licenses Changjiang Company to distribute and project the film Next Life in 13 cities in Jiangsu Province. The relevant contents in the agreement include: (1) the time period when the film Next Life is projected in Jiangsu shall be from May to the end of December1998. (2) The film ticket revenues shall be shared by both parties at a certain proportion. (3) Changjiang Company must inform Investment Company by fax of the last day's “Daily Report on Projection Performance” on the morning of the day following the premiere, and submit the financial statement to Investment Company within 3 days as of the end of every week. It shall also, within too weeks after the premiere, remit Investment Company's distributable revenues by telegraphic transfer into the designated account, and shall, within one week after the end of the distribution date, remit Investment Company's all shareable revenues into the designated account. (4) Changjiang Company must check the authenticity of the ticket revenues of the film Next Life as reported by the film companies and cinemas in all the cities and counties. If Investment Company finds any cinema or company which distributes or projects the film Next Life omits or conceals any ticket revenue, Changjiang Company shall bear the liability of making economic compensations to Investment Company at 10 times the omitted or concealed ticket revenues. In April 1999, Investment Company and Changjiang Company concluded a written “Contract on Film Distribution and Projection by Sharing Ticket Revenues”, confirming the oral agreement reached in May 1998, and then agreed upon the proportion for sharing the ticket revenues, stipulating that Investment Company may take 32% and Changjiang Company 68%. (一)关于合同签订情况及合同约定内容。投资公司1997年8月与南京电影制片厂签订协议书,约定双方合作拍摄影片《下辈子还做母子》(以下简称《下》片),著作权归投资公司所有,南京电影制片厂负责《下》片剧本审定并上报主管部门和国家电影局备案。南京电影制片厂持有《摄制电影许可证》。1998年5月投资公司与长江公司经协商达成口头协议,约定投资公司许可长江公司在江苏省13个市发行放映《下》片。与本案相关的协议内容有:1.《下》片在江苏的放映时间为1998年5月至同年12月底。2.影片票房收入双方按比例分成。3.长江公司须在首映之日起的次日上午用传真向投资公司通报前日“映出成绩日报表”,财务报表应于每周结束的三日内报送投资公司,并于上映两周后将投资公司应得的分成收入金额以电汇方式汇入指定帐户,发行日期结束后的一周内,将投资公司应得所有分成汇人指定帐户。4.长江公司须检查各市、县电影公司和影院上报《下》片票房收入的真实性,如经投资公司查出发行放映《下》片的影院或公司有漏、瞒报票房收入,由长江公司按漏、瞒报票款的10倍对投资公司承担经济赔偿责任。1999年4月投资公司与长江公司签订书面《影片票房分帐发行放映合同》,对1998年5月口头协议予以确认,并进而对票房收入分成比例达成合意,约定投资公司分成32%、长江公司分成68%。
It was further verified that: Article 3 of the 1995 “Interim Provisions on Film Transactions” of the Ministry of Radio, Film and Television prescribes: “Any seller who participates in film transactions must hold a license issued by the government administrative department for film production or distribution”. However, Investment Company did not have the license issued by the governmental department for film production or distribution. 另查明:国家广播电影电视部1995年《影片交易暂行规定》第三条规定:“凡参与影片交易的卖方必须持有政府管理部门颁发的制片或发行许可证”。投资公司不具有政府部门颁发的制片许可证、发行许可证。
(II) On the performance of contract by Changjiang Company. From May to the end of December 1998, Changjiang Company distributed and projected the film Next Life in Jiangsu Province. In January 1999, Changjiang Company made a consolidated “Statement of Analysis of Film Projection Performance in Jiangsu Province for Sharing Revenues” and “Statement of Analysis of Accumulative Projection Performance in Jiangsu Province” on the basis of the “Daily Reports on Projection Performance” and “Statements of Settlement of Projection Revenues” as reported by the film companies in each city or county of Jiangsu Province regarding the film Next Life, and the total amount of the ticket revenues of the film Next Life all over the province added up to 1,337,081.40 Yuan. Changjiang Company submitted to Investment Company in that month the two consolidated statements along with some “Statements of Settlement of Projection Revenues” and “Daily Reports on Projection Performance” submitted by the cities and counties concerned. After that, the film companies in some cities and counties made up the report of ticket revenues, and Changjiang Company found that the fabricated ticket revenues added up to 40,012 Yuan, but did not inform Investment Company of the fabricated ticket revenues. Jiangsu Higher Court verified after checking the above-mentioned statements in the trial that: since the proportions for the film companies in some cities and counties to share the revenues by themselves were erroneous and Changjiang Company had to infer partial ticket revenues backward, the provincial total amount of ticket revenues calculated by Changjiang Company was different from the total amount of ticket revenues actually reported by all the cities and counties. Throughout the province, there were 45 cities and counties reporting ticket revenues, and the actually reported total amount of ticket revenues was 1,389,190.40 Yuan, including student ticket revenues and adult ones. Changjiang Company submitted 1,337,081.40 Yuan of total amount of ticket revenues to Investment Company, 52,109 Yuan less than the total amount of ticket revenues actually reported by all the cities or counties, i.e., 1,389,190.40 Yuan. Among the 52,109 Yuan, 9,429 Yuan was not included by Changjiang Company into the total amount of ticket revenues, but the statements had been submitted by relevant cities and counties to Investment Company. Changjiang Company totally paid 150,000 Yuan to Investment Company by twice, in November 1998 and April 1999, respectively. On June 28, 1999, Changjiang Company sent a letter to Investment Company, saying: the ticket revenues of the film Next Life in Jiangsu added up to 1,337,081.40 Yuan, and Investment Company may share 387,937.20 Yuan; Changjiang Company has paid 150,000 Yuan, and the remaining 237,937.20 Yuan shall be paid off by the end of October 1999. After receiving that letter, Investment Company brought a lawsuit to Jiangsu Higher Court on July 6, 1999. (二)关于长江公司履约情况。1998年5月至12月底,长江公司在江苏省发行放映《下》片。1999年1月,长江公司根据江苏省各市、县电影公司上报的《下》片《映出成绩日报表》、《放映收入结算表》,汇总制作《分帐影片江苏省映出成绩指标分析表》、《江苏省映出成绩累计分析表》,统计全省《下》片票款总额为1337081.40元。长江公司当月将该两份汇总报表连同市县报送的部分《放映收入结算表》、《映出成绩日报表》报送投资公司。之后部分市县电影公司补报票款,长江公司对补报票款统计为40012元,但未将该补报票款告知投资公司。原审法院审理中对上述各类报表核对查明:因一些市县电影公司自行提成比例有误,长江公司对部分票房收入予以倒推,因而长江公司统计的全省票款总额与各市、县实际上报的票款总额不符。全省先后共有45个市县上报票款,实际上报票款总额1389190.40元,该总额中包含学生和成人票款。长江公司报送投资公司的票款总额1337081.40元,与各市、县实际上报票款总额1389190.40元之间相差52109元。52109元中有9429元,长江公司虽未统计在票款总额内,但已将相关市县报表报送投资公司。长江公司于1998年11月、1999年4月两次共向投资公司支付分成款15万元。1999年6月28日长江公司致函投资公司称:《下》片在江苏的票房收入合计为1337081.40元,投资公司应得387937.20元,长江公司已付15万元,剩余237937.20元于1999年10月底前付清。投资公司接此函后于1999年7月6日向原审法院提起诉讼。
(III) On Investment Company's provision of evidence and the court's verification of the facts. During the court proceedings, Investment Company submitted to Jiangsu Higher Court 1095 questionnaires filled out by schools in Jiangsu Province. It was found after verification that the questionnaires were sourced from an investigation activity carried out by the relevant department by sending letters to the primary and high schools all over the province. The purpose of the investigation was to assist the National Commission for Coordination of Film and Television Education for Primary and High School Students in researching the ideas of the students in Jiangsu Province and their parents after they saw the film Next Life. Each questionnaire had a column on film ticket fare, and they were required to write down the ticket fare. Among the 1095 questionnaires, more than 300 were filled out by schools and were then directly sent to designated addresses, while the remaining were collected by the staff dispatched by Investment Company to the schools. Some questionnaires even proposed the schools to fabricate higher ticket revenues. It was verified after examination that, among the 1095 questionnaires provided by Investment Company, the 15 schools in Hai'an County were determined as irrelevant with the present case due to the time of seeing the film. Jiangsu Higher Court's investigation on partial schools in Hai'an County also proved this fact. Hence the 15 items of evidence should have no probative force to the facts of the present case. The schools involved in the remaining 1080 questionnaires were located in 60 cities and counties all over the province. Upon the investigations made by Jiangsu Higher Court by entrusting relevant courts, by itself and by letter investigations, as well as Changjiang Company's acknowledgement of the 18 questionnaires, the facts on seeing the film and the amount of ticket revenues were found to have been verified in 852 schools, while for 228 schools, the facts on seeing the film or the actual amount of ticket revenues were unable to be verified due to the revocation of the schools, the leaving of the parties concerned, the inability to find original attestations, or other causes. Jiangsu Higher Court compared the verified facts on seeing the film in the 852 schools with the questionnaires submitted by Investment Company, and the result showed that: 282 schools denied seeing the film, the ticket revenues answered by 430 schools were less than those on the questionnaires, the ticket revenues answered by 79 schools equaled those on the questionnaires, and the ticket revenues provided by 61 schools were more than those on the questionnaires. As verified by the court, the total amount of ticket revenues of the 852 schools was 1,134,699.85 Yuan, while the said amount of ticket revenues asserted by Investment Company was 2,751,178.10 Yuan. The former was approximately 41% of the latter. Jiangsu Higher Court compared the ticket revenues of the 852 schools with the ticket revenues reported by in the film companies in the cities and counties, and the result showed that: as verified by the court, the student ticket revenues of 6 counties, namely, Jiangning, Dantu, Hongze, Huai'an, Lianshui and Donghai, were 29,088.20 Yuan, but the film companies in the said 6 counties never reported any ticket fare. Jiangsu Higher Court verified that the student ticket revenues of 19 cities and counties, namely, Changshu, Wuxian, Zhangjiagang, Jiangyin, Xishan, Jintan, Wujin, Danyang, Yangzhong, Yangzhou, Jiangdu, Jianhu, Jinhu, Lianyungang, Suqian (including Suyu), Qiuhong, Jingjiang, Taixing, Xinghua, were 231,892.65 Yuan higher than the total student and adult ticket revenues reported by the film companies in the said 19 cities and counties. (三)关于投资公司举证及法院查证情况。诉讼中投资公司向原审法院提交江苏省1095份学校填写的调查表。经查,调查表源于有关部门向全省中小学校发函而进行的一项调查活动,调查目的是协助全国中小学生影视教育协调工作委员会对江苏省学生和家长观看《下》片情况进行调研,调查表中含有电影票款栏,并要求写明票款。该1095份调查表的300余份是学校填写后直接寄往指定地点,其余由投资公司派员到各学校收取,有的还要求学校尽量多填写票款额。经审查,投资公司提供的1095份调查表中海安县15所学校从观影时间上排除了与本案的关联,原审法院对其中部分学校的调查也证实了此点,该15份证据对本案事实无证明力。其余1080份调查表所涉学校分布在全省60个市县,经原审法院委托相关法院调查、自行调查、发函调查以及长江公司对18份调查表的认同,852所学校观影情况及票款数额已经查明,228所学校因学校撤销、当事人调离、原始凭证无法查找或其他原因,无法查明实际观影情况或实际支出票款数额。原审法院将查明的852所学校观影情况与投资公司提交的调查表进行对比的结果为:否定观看的有282所学校、票款小于调查表的有430所学校、票款等于调查表的有79所学校、票款大于调查表的有61所学校。法院查明852所学校票款总额为1134699.85元,而投资公司主张中相应学校的票款额为2751178.10元,法院查明额约占投资公司主张额41%。原审法院将852所学校票款与市县电影公司上报票款进行对比的结果为:法院查明江宁、丹徒、洪泽、淮安、涟水、东海等6县有学生票款29088.20元,而该6县电影公司未上报任何票款;原审法院查明常熟、吴县、张家港、江阴、锡山、金坛、武进、丹阳、扬中、扬州、江都、建湖、金湖、连云港、宿迁(含宿豫)、泅洪、靖江、泰兴、兴化等19市县的学生票款比该19市县电影公司上报的学生和成人合计票款高出231892.65元。
PROCEDURAL POSTURE 
Jiangsu Higher Court held that: 原审法院认为:
(I) On the effectiveness of the contract. The contract concluded between Investment Company and Changjiang Company was a contract on the license of the right to distribute films, and was lawful and effective. Changjiang Company demurred that the contract was null and void as Investment Company had no license for film distribution. Jiangsu Higher Court held that, the copyright of the film Next Life lawfully owned by Investment Company should be protected by the “Copyright Law of the People's Republic of China”. The purpose of the provisions in the “Interim Provisions on Film Transactions” on the requirement for film distributors to hold their licenses for film production or distribution is to guarantee the state's interference with and control over the stage of film production or distribution. In the present case, although Investment Company had no license for film production or film distribution, it was merely at an intermediate stage between film shooter and film distributor, and it itself did not directly shoot or distribute the film. The film Next Life was shot by Nanjing Film Studio who held the license for film production, so the film production was under the control of the state; meanwhile, Changjiang Company who was licensed to distribute the film Next Life held the license for film distribution, so the distribution was also under the control of the state. Hence Investment Company's conclusion of the contract did not violate the tenet of the “Interim Provisions on Film Transactions”. Therefore, Changjiang Company's ground for demurral that the contract was null and void should not be tenable. (一)关于合同效力。投资公司与长江公司双方签订的合同系影片发行权许可合同,该合同合法有效。长江公司抗辩称,由于投资公司没有发行许可证,所以合同无效。原审法院认为,投资公司合法拥有的《下》片著作权,受《中华人民共和国著作权法》保护。《影片交易暂行规定》中关于影片发行交易卖方需持有制片或发行许可证之规定的目的,是为了保证国家对影片制片、发行环节的干预、控制。本案中,投资公司虽无影片摄制与发行许可证,但其只是影片拍摄者与发行者之间的一个中间环节,其本身并未直接进行影片拍摄或发行。《下》片的拍摄行为由持有摄制许可证的南京电影制片厂所为,制片环节已受到国家控制;《下》片被许可的发行方长江公司持有发行许可证,发行环节也可受到国家控制,投资公司的签约行为因而不违反《影片交易暂行规定》精神。因此,长江公司关于合同无效的抗辩理由不成立。
(II) On whether there was omission or concealment of ticket revenues and how to ascertain the omitted or concealed ticket revenues. The total amount of ticket revenues of the film Next Life, which was submitted by Changjiang Company to Investment Company, was 52,109 Yuan less than that actually reported by all the cities and counties. Among the said difference, 9,429 Yuan was not caused by omission, because: although Changjiang Company did not count the 9,429 Yuan into the total amount of ticket revenues, it had submitted the statements of the relevant cities and counties to Investment Company, and Investment Company could check such statements to find any omission. The 9,429 Yuan should be ascertained as uncalculated revenues to be shared, and Changjiang Company should pay 2,771 Yuan to Investment Company at the proportion. As for the remaining 42,680 Yuan, Changjiang Company neither counted it into the total amount of ticket revenues, nor submitted statements about the cities and counties, thus it should be ascertained as ticket revenues omitted or concealed by Changjiang Company. According to the facts verified by the court about the 852 schools, Jiangning and other 5 counties omitted 29,088.20 Yuan of ticket revenues, and the actual amount of ticket revenues was 231,892.65 Yuan higher than that reported by the film companies in 19 cities and counties including Changshu, so a total amount of 260,980.85 Yuan should be ascertained as the ticket revenues omitted or concealed by the film companies in all the cities and counties. Since among the 1080 schools, the facts of some schools on seeing the film were, due to various reasons, unable to be verified, or the amount of their ticket revenues was unable to be determined. Moreover, the comparison on omission and concealment was made by the court between the verified student ticket revenues and the total student and adult ticket revenues reported by all the cities and counties. Therefore, it should be reasonably deduced that some cities and counties omitted or concealed the other 50,000 Yuan of ticket revenues. On the basis of the three sums of omitted or concealed ticket revenues, totaling 353,660.85 Yuan, specifically, 42,680 Yuan omitted and concealed by Changjiang Company, the verified 260,980.85 Yuan omitted and concealed by the cities and counties, and 50,000 Yuan deduced to have been omitted and concealed by the cities and counties, it should be ascertained that Changjiang Company breached the contract. Therefore, Investment Company's litigation claim on Changjiang Company's breach of the contract was tenable. Investment Company thought that the ticket revenues omitted or concealed within Jiangsu Province reached several million Yuan, but the 1095 questionnaires it provided were neither corroborated with any original invoice, nor consistent with the actual facts verified by the court, hence they should not be adopted as effective evidence. Therefore, the omitted or concealed amount as asserted by Investment Company could not be tenable due to insufficiency of evidence. (二)关于是否存在漏瞒报事实及漏瞒报票款的认定。长江公司向投资公司报送的《下》片票款总额与各市、县实际上报的票款总额之间相差52109元。其中的9429元不属于漏报,理由是:长江公司虽未将该9429元统计在票款总额内,但已将相关市县报表报送投资公司,投资公司可以核对发现漏报。该9429元应认定为未计算提成,长江公司应当向投资公司支付提成款2771元。其余42680元,长江公司既未统计在票款总额内,也未报送市县报表,应认定为长江公司漏瞒报票款。根据法院对852所学校查明的事实,江宁等6县未报票房收入29088.20元、常熟等19市县高于电影公司所报票房收入的231892.65元,共计260980.85元应认定为各市、县电影公司漏瞒报票款。由于1080所学校中尚有部分学校因各种原因无法查明观影情况或无法确定票款数额,以及法院所作的漏瞒报对比是在法院查明的学生票款与各市、县上报的学生和成人合计票款间进行,应当合理推定相关市县另外漏瞒报票款5万元。依据上述长江公司漏瞒报42680元、查明市县漏瞒报260980.85元、推定市县漏瞒报5万元,三项共计漏瞒报票款353660.85元,应当认定长江公司构成违约。因此,投资公司关于长江公司违约的诉讼主张成立。投资公司认为江苏省内漏瞒报票款达数百万元,但其提供的1095份调查表既无原始发票予以佐证、又与法院查明的实际情况明显不符,因而不能作为有效证据使用。其主张的漏瞒报数额因证据不足而不能成立。
(III) On the liabilities for breach of the contract due to omission and concealment of ticket revenues. Changjiang Company breached the contract due to its omission concealment of ticket revenues, and should bear the liabilities for breach of contract. Changjiang Company held that the liabilities for omission and concealment should be borne by those who omitted and concealed the ticket revenues. On this issue, Jiangsu Higher Court held that, although the ticket revenues were mainly omitted or concealed by the film companies in all cities and counties, and it was difficult for Changjiang Company to practically supervise such acts, the liabilities should still be borne by Changjiang Company according to Item (6) of Article 4 of the contract concluded between Investment Company and Changjiang Company. As for the liabilities for economic compensation at 10 times, which Investment Company required Changjiang Company to bear, Jiangsu Higher Court held that, the contract sets forth that Changjiang Company shall bear 10 times of compensation for the omitted or concealed ticket revenues found out by Investment Company, but the omitted or concealed amount provided by Investment Company was not true and involved some frauds; in the present case, the actually omitted or concealed amount was verified by the court instead of Investment Company, and moreover, in the present case, the compensation at 10 times did not conform to the principle in the Contract Law of China on compensating the actual losses. Therefore, the claim for compensation at 10 times should not be supported. On the basis of the liabilities for breach of the contract, which Changjiang Company should bear, and according to the principle of fairness, the amount of compensation for economic losses was determined at 5 times the omitted and concealed amount of ticket revenues, in other words, the amount at 5 times of the 353,660.85 Yuan ascertained by Jiangsu Higher Court, i.e., 1,768,304.25 Yuan, should be determined as the amount of compensation for economic losses. (三)关于漏瞒报票款的违约责任。长江公司对漏瞒报票款行为构成违约,应当承担违约责任。长江公司认为漏瞒报责任应由漏瞒报者承担,对此法院认为,虽然漏瞒报票款行为主要系各市、县电影公司所为,长江公司客观上对此难以监管,但根据投资公司与长江公司双方所签合同第4条第6项的约定,该责任仍应由长江公司承担。关于投资公司要求长江公司承担10倍经济赔偿的责任,法院认为,合同约定对投资公司查出的漏瞒报票款给予10倍赔偿,而投资公司提供的漏瞒报数额并不真实,有弄虚作假行为;本案中的实际漏瞒报数额是由法院而非投资公司查出,且本案中按10倍赔偿处理亦不符合我国合同法中的赔偿实际损失原则,故对按10倍赔偿的请求不予支持。基于长江公司确应承担违约责任,依据公平原则,以漏瞒报票款额的5倍确定经济损失赔偿数额,即以法院认定的353660.85元的5倍数额1768304.25元作为经济损失赔偿额。
(IV) On the ascertainment of the delayed payment and the liabilities for breach of the contract. Investment Company and Changjiang Company agreed upon the specific proportions for sharing the ticket revenues of the film Next Life by April 1999. As required by the time limit for payment in the “Contract on Film Distribution and Projection by Sharing Ticket Revenues”, the deadline for Changjiang Company to pay all Investment Company's distributable revenues should be May 7, 1999. However, Changjiang Company still failed to pay 237,937.20 Yuan after expiry of the time limit, and its subsequent proposition for modifying the time of payment was not agreed to by Investment Company. Therefore, Investment Company's litigation assertion that Changjiang Company's delayed payment constituted breach of contract was tenable, and Changjiang Company should pay 237,937.20 Yuan of unpaid ticket revenues to Investment Company. (四)关于迟延付款的认定及违约责任。投资公司与长江公司双方对《下》片的分成具体比例至1999年4月达成合意,按照《影片票房分帐发行放映合同》付款期限的约定,长江公司支付全部分成款的最迟期限应当是1999年5月7日。长江公司在期限届满后仍有237937.20元未支付,其之后提出变更支付时间的主张也未获得投资公司许可,因此投资公司关于长江公司迟延付款构成违约的诉讼主张成立,长江公司应当向投资公司支付未付款237937.20元。
(V) Changjiang Company's omission and concealment of ticket revenues and its delayed payment were a breach of the contract, and did not constitute tort, hence Investment Company's litigation claim against Changjiang Company for making a public apology was short of legal basis, and should not be supported. (五)长江公司漏瞒报票款及迟延付款属违约行为并不构成侵权,投资公司要求长江公司公开赔礼道歉的诉讼请求缺乏法律依据,不予支持。

To sum up, partial litigation claims of Investment Company were tenable and should be supported by the court. Jiangsu Higher Court adjudicated as follows in accordance with Article 10 and Article 47 of the former “Copyright Law of the People's Republic of China”, Article 4 and Article 111 of the “General Principles of Civil Law of the People's Republic of China”, Article 128 of the “Civil Litigation Law of the People's Republic of China”: (1) Changjiang Company shall pay 1,768,304.25 Yuan of compensation for economic losses to Investment Company. (2) Changjiang Company shall pay 2,771 Yuan of distributable revenues to Investment Company. (3) Changjiang Company shall pay 237,937.20 Yuan of unpaid money to Investment Company. All the above payment shall be paid within 30 days as of effectiveness of the present judgment. And (4) Investment Company's other litigation claims shall be rejected. As for the 86,199.69 Yuan of case acceptance fee, Investment Company shall bear 46,199.69 Yuan, and Changjiang Company shall bear 40,000 Yuan.

 综上,投资公司部分诉讼请求成立,法院予以支持。法院依照原《中华人民共和国著作权法》第十条、第四十七条,《中华人民共和国民法通则》第四条、第一百一十一条、《中华人民共和国民事诉讼法》第一百二十八条之规定,判决:(一)长江公司向投资公司支付经济损失赔偿款1768304.25元。(二)长江公司向投资公司支付提成款2771元。(三)长江公司向投资公司支付未付款237937.20元。上述支付款项,均于本判决生效之日起三十日内付清。(四)驳回投资公司其他诉讼请求。案件受理费86199.69元由投资公司负担46199.69元,长江公司负担4万元。
Investment Company was dissatisfied with the judgment of the first instance, and appealed to the present court, alleging that: (I) The the amount of ticket revenues concealed by Changjiang Company was wrongly determined in the judgment of the first instance. (1) The method Jiangsu Higher Court exploited to determine the concealed amount was wrong. The 1,134,699.85 Yuan of ticket revenues verified in the first instance was merely the ticket revenue from the students of 852 schools in Jiangsu Province, and could not be compared with the ticket revenues from the adult audience all over the province as reported by Changjiang Company. The accurate settlement of the present case lies in comparing the verified ticket revenues from the film Next Life all over the province against the figure reported by Changjiang Company so as to determine whether Changjiang Company concealed any revenue, and if so, how much is the specific concealed amount. (2) Jiangsu Higher Court's investigation conclusion was not accurate, and was not enough to reverse the evidence submitted by Investment Company. Jiangsu Higher Court only verified the amount within the scope of the information provided by Investment Company on the 1095 schools, and the conclusion could not be used as the basis for determining the case. Moreover, Jiangsu Higher Court's investigation data were determined mainly on the basis of oral or written statements of the investigated persons, thus the objectivity of such evidence was doubtful. (3) Jiangsu Higher Court gathered and sorted out the investigation materials, and the way for it to determine the amount of ticket revenues was seriously unfair to Investment Company. The wrongfully reported time for the 15 schools in Hai'an County to see the film could only show that Changjiang Company or its subordinate entity was suspected to breach the contract by exceeding the time limit to distribute and project the film Next Life, and the amount concealed by Changjiang Company should not be subsequently reduced. Jiangsu Higher Court deduced that the ticket revenues of the unverifiable schools and the adult ticket revenues were 50,000 Yuan, but such a deduction had no factual or legal basis. Changjiang Company should have the contractual responsibility of warranting the provision of accurate figures to Investment Company, thus the 9,429 Yuan ascertained by Jiangsu Higher Court as unconcealed amount should be calculated into the amount concealed by Changjiang Company. The investigation conclusion expressed by Jiangsu Higher Court in the judgment and the verification result in the files were contradictory against one another. Jiangsu Higher Court had no reason to refuse the adoption of Evidence No. 11 submitted by Investment Company, and to refuse to verify the evidence and clues directly supporting Investment Company's litigation claims, which has helped reducing Changjiang Company's concealed amount. (II) Jiangsu Higher Court's made an incomplete determination of the nature of Changjiang Company's liabilities for concealment and the acts thereof. According to the Copyright Law, Changjiang Company's concealment had infringed upon Investment Company's right to remuneration, and had constituted a tort. (III) On the issue of paying late fees and litigation costs. As described in the judgment of the first instance, Investment Company withdrew in the court hearing its litigation claim against Changjiang Company for paying late fees and bearing all the litigation costs. Actually, such description was not true to the fact. To sum up, Investment Company pleaded with the present court to: (1) overrule the judgment of the first instance; (2) order Changjiang Company to pay RMB 15 million Yuan of liquidated damages to Investment Company; (3) order Changjiang Company to make a public apology to Investment Company for its breach of the contract and its tortious act; (4) order Changjiang Company to pay 237,937.20 Yuan of distributable film ticket revenues to Investment Company and the late fees thereof; and (5) order Changjiang Company to bear all the litigation costs in the present case.
......
 投资公司不服一审判决,向本院上诉称:(一)一审判决对长江公司瞒报票房数额的认定错误。1.原审法院认定瞒报数额的方法错误。一审查证所得的1134699.85元票款,仅仅是江苏省852所学校学生团体观影的票房收入,与长江公司所报的全省成人观众观影的票房收入没有可比性。本案的准确处理在于查明《下》片在全省的票房收入,再与长江公司所报数字对比,以确定长江公司有无瞒报行为和具体的瞒报数额。2.原审法院的调查结论不具准确性,不足以推翻投资公司提交的证据。原审法院仅仅在投资公司提供的1095所学校资料的范围内进行核查,所得结论不足以作为定案依据。而且原审法院的调查数据主要根据调查对象的口头或书面陈述认定,其证据的客观性令人质疑。3.原审法院对调查材料归总整理,确定票款数字的方式对投资公司严重不公。海安县15所学校的观影时间不符,只能说明长江公司或其下属单位有超期限发行放映《下》片的违约嫌疑,不能以此减低长江公司的瞒报数额。一审推定无法查明的学校观影票款以及成人观影票款为5万元,没有事实和法律依据。长江公司负有保证向投资公司提供准确数字的合同责任,故原审法院认定不属瞒报的9429元应当计入长江公司的瞒报数额。原审法院在判决书中表述的调查结论与其归卷的核查结果自相矛盾。一审无理由不采用投资公司提交的证据11,对直接支持投资公司诉讼请求的证据和线索不予查证,刻意缩小了长江公司的瞒报范围。(二)原审法院对于长江公司瞒报责任及其行为性质的认定不全面。根据著作权法,长江公司的瞒报行为已侵犯了投资公司的获得报酬权,构成侵权。(三)关于滞纳金和诉讼费的承担问题。一审判决书称投资公司在庭审中撤回要求长江公司支付滞纳金、承担全部诉讼费的诉讼请求,与事实不符。综上,请求二审:(1)撤销原判;(2)判令长江公司给付投资公司违约赔偿人民币1500万元;(3)判令长江公司就违约和侵权行为向投资公司公开赔礼道歉;(4)判令长江公司向投资公司给付电影票房收入分成款237937.20元及滞纳金;(5)本案全部诉讼费用由长江公司承担。
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