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| Five Model Cases Published by the Supreme People's Court | | 最高人民法院发布五起典型案例 |
| (April 30, 2014) | | （2014年4月30日） |
| Case No. 1 | | 案例1 |
| People v. Fan Aidong, Wang Shenghua, and Cai Jun (Environmental pollution case) | | 被告人樊爱东、王圣华、蔡军污染环境案 |
| I. Basic Facts | | （一）基本案情 |
| In late July 2012, for the disposal of aluminum chlorine, a by-product which was a hazardous chemical, Xing Bin (handled in another case), the assistant to general manager of Shandong Xingfu New Materials Co., Ltd., reached an agreement with defendant Fan Aidong after report to general manager Liu Genxian (handled in another case), under which Fan Aidong would be paid 300 yuan per ton to dispose of the by-product. On July 25 of the same year, Fan Aidong arranged for defendants Wang Shenghua and Cai Jun to drive tankers to carry away 35 tons of aluminum chlorine from Shandong Xingfu New Materials Co., Ltd., and was paid 10,500 yuan. Around 02:00 on July 27, Fan Aidong, Wang Shenghua, and Cai Jun drove the tankers to the Xiaoqinghe Bridge, south of Tangkou Village, Huagou Township, Gaoqing County, Shandong Province, and dumped such 35 tons of aluminum chlorine into the Xiaoqinghe River. The toxic gas haze generated from the reaction of aluminum chlorine with water drifted to Hantao Village, Jiaoqiao Township, Zouping County, Shandong Province, which wakened villagers in slumber, caused damage to the respiratory system of more than a hundred of villagers, and resulted in crops and seedlings and other significant property losses. A villager named Han Xuefang (victim, female, 42 years old at death) who suffered from dilated cardiomyopathy and other diseases died from acute respiration cycle failure resulted from the inhalation of acid pungent odor causing the congestion and edema of trachea and lung and the direct increase in cardiac and lung load. On July 28, Wang Shenghua was captured and Fan Aidong and Cai Jun surrendered themselves. | | 2012年7月下旬，山东兴氟新材料有限公司为处理副产品危险化学品硫酰氯，公司总经理助理邢斌（另案处理）在请示总经理刘根宪（另案处理）后，与被告人樊爱东商定每吨给樊爱东300元交由樊爱东处置。同年7月25日，樊爱东安排被告人王圣华、蔡军驾驶罐车到山东兴氟新材料有限公司拉走35吨硫酰氯，得款10500元。7月27日2时许，樊爱东、王圣华、蔡军将罐车开至山东省高青县花沟镇唐口村南小清河大桥上，将35吨硫酰氯倾倒于小清河中。硫酰氯遇水反应生成的毒气雾团飘至山东省邹平县焦桥镇韩套村，将熟睡中的村民熏醒，致上百村民呼吸系统受损，并造成庄稼苗木等重大财产损失，村民韩学芳（被害人，女，殁年42岁）原患有扩张型心肌病等疾病，因吸入酸性刺激气体，致气管和肺充血、水肿，直接加重心肺负荷，导致急性呼吸循环衰竭死亡。7月28日，王圣华被抓获归案，樊爱东、蔡军投案自首。 |
| II. Adjudication | | （二）裁判结果 |
| The People's Procuratorate of Zibo City, Shandong Province instituted a public prosecution against defendants Fan Aidong, Wang Shenghua, and Cai Jun for the crime of endangering the public security in a dangerous way. After trial, the Intermediate People's Court of Zibo City held that: Defendants Fan Aidong, Wang Shenghua, and Cai Jun dumped aluminum chlorine, which was a corrosive and pungent chemical, into a river in violation of the state provisions, seriously polluting the environment and causing the death of one person and significant property losses, which were exceptionally grave consequences. They were guilty of environmental pollution. The criminal facts alleged by the public prosecution organ were true, but the charges were inappropriate. In accordance with the relevant provisions of the Criminal Law of the People's Republic of China and the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Application of Law in the Handling of Criminal Cases Involving Environmental Pollution, the court found defendant Fan Aidong guilty of environmental pollution, and sentenced him to imprisonment of six years and six months and a fine of 150,000 yuan; found defendant Wang Shenghua guilty of environmental pollution and sentenced him to imprisonment of six years and a fine of 100,000 yuan; and found defendant Cai Jun guilty of environmental pollution and sentenced him to imprisonment of five years and six months and a fine of 100,000 yuan. After the judgment was pronounced, all defendants accepted it and did not appeal. | | 山东省淄博市人民检察院以被告人樊爱东、王圣华、蔡军犯以危险方法危害公共安全罪向淄博市中级人民法院提起公诉。淄博市中级人民法院经审理认为，被告人樊爱东、王圣华、蔡军违反国家规定，往河中倾倒具有腐蚀性、刺激性的化学品硫酰氯，严重污染环境，并造成一人死亡、重大财产损失的特别严重后果，其行为均已构成污染环境罪。公诉机关指控犯罪事实成立，但罪名不当。依照《中华人民共和国刑法》和《最高人民法院、最高人民检察院关于办理环境污染刑事案件适用法律若干问题的解释》的相关规定，认定被告人樊爱东犯污染环境罪，判处有期徒刑六年六个月，并处罚金人民币十五万元；被告人王圣华犯污染环境罪，判处有期徒刑六年，并处罚金人民币十万元；被告人蔡军犯污染环境罪，判处有期徒刑五年六个月，并处罚金人民币十万元。宣判后，各被告人均服判，未提出上诉。 |
| III. Significance | | （三）典型意义 |
| Since the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Application of Law in the Handling of Criminal Cases Involving Environmental Pollution took effect on June 19, 2013, the past difficulties in “evidence collection,” “identification,” and “determination” in cases involving environmental pollution have been resolved, and courts throughout the country have stepped up crackdown on crimes of environmental pollution and closed a number of criminal cases involving environmental pollution. According to incomplete statistics, up to last December, courts throughout the county had closed more than a hundred criminal cases in which the defendants were convicted and sentenced for the crime of environmental pollution, the crime of illegally disposing of imported solid wastes, and the crime of delinquency in environmental supervision. In more than 80 criminal cases, the defendants were convicted and sentenced for the crime of environmental pollution, and this case was a model one of them. The judgment of this case has strictly defined the differences between the crime of environmental pollution and the crime of endangering the public security in a dangerous way, and fully embodied the roles of the people's courts in punishing crimes of environmental pollution according to the law and promoting the building of ecological civilization and the sound economic and social development. | | 《最高人民法院、最高人民检察院关于办理环境污染刑事案件适用法律若干问题的解释》自2013年6月19日施行以来，解决了以往环境污染案件“取证难”、“鉴定难”、“认定难”的问题，全国法院加大了对污染环境犯罪的打击力度，集中审结了一批污染环境犯罪案件。据不完全统计，截至去年12月，全国法院累计审结以污染环境罪、非法处置进口的固体废物罪、环境监管失职罪定罪处罚的刑事案件百余件。其中，审结以污染环境罪定罪处罚的刑事案件八十余件，本案即其中典型。本案的审判，严格界定了污染环境罪与以危险方法危害公共安全罪的区别，也充分体现和发挥了人民法院依法惩治污染环境犯罪，促进生态文明建设和经济社会健康发展的职能作用。 |
| Case No. 2 | | 案例2 |
| Qihoo Company and Qizhi Company v. Tencent Company and Tencent Computer Company (Unfair competition dispute) | | 奇虎公司、奇智公司与腾讯公司、腾讯计算机公司不正当竞争纠纷案 |
| I. Basic Facts | | （一）基本案情 |
| Tencent Company and Tencent Computer Company were Internet companies providing comprehensive Internet services, and Tencent QQ instant messenger software and Tencent QQ instant messaging system were their core products and services. On October 29, 2010, Tencent Company and others discovered that Qihoo Company provided users with the downloading of the software of “360 Koukou Bodyguard” on www.360.cn, which was developed by Qizhi Company, and advertised it by various means. Tencent Company and others considered that this software directly targeted the Tencent QQ software, encouraged and induced users to delete value-added plug-ins in the Tencent QQ software and shielded customers' advertisements in it, while embedding products and services of Qihoo Company into the interface of the QQ software take the opportunity to publicize and popularize the products of Qihoo Company. Tencent Company and others considered that the aforesaid acts of Qihoo Company and others not only damaged their legitimate business model and severely destructed the integrity and safety of their products and services, but also seriously damaged their business reputation and commodity reputation. Therefore, Tencent Company and others filed a lawsuit with the Higher People's Court of Guangdong Province on the grounds that Qihoo Company and others violated recognized business ethics and committed unfair competition, and requested the court to order the two defendants to: (1) immediately cease the unfair competition, including but not limited to ceasing the development, dissemination, and distribution of the “360 Koukou Bodyguard” and related software, ceasing the existing functions of the “360 Koukou Bodyguard” already distributed and disseminated, and ceasing defamation of the plaintiffs and their products and services; (2) make a formal apology to the plaintiffs on the relevant websites and newspapers for three consecutive months for their unfair competition and eliminate adverse effects; (3) jointly and severally compensate the plaintiffs in the amount of 125 million yuan for economic losses; and (4) assume the reasonable expenses of the plaintiffs for protecting their rights and all litigation costs. | | 腾讯公司、腾讯计算机公司是提供互联网综合服务的互联网公司，腾讯QQ即时通讯软件和腾讯QQ即时通讯系统是其核心产品和服务。2010年10月29日，腾讯公司等发现奇虎公司通过www.360.cn网站向用户提供奇智公司开发的“360扣扣保镖”软件的下载，并通过各种途径进行推广宣传。腾讯公司等认为该软件直接针对腾讯QQ软件，通过虚假宣传，鼓励和诱导用户删除腾讯QQ软件中的增值业务插件、屏蔽其客户广告，同时将奇虎公司产品和服务嵌入腾讯公司QQ软件界面，借机宣传和推广自己的产品。腾讯公司等认为奇虎公司等前述行为不仅破坏了其合法的经营模式，导致其产品和服务的完整性和安全性遭到严重破坏，其公司商业信誉和商品声誉亦遭到严重损害，以奇虎公司等行为违反了公认的商业道德，构成不正当竞争等为由，诉至广东省高级人民法院，请求法院判令两被告：1.立即停止涉案不正当竞争行为，包括但不限于停止开发、传播和发行“360扣扣保镖”及相关软件，停止已发行和传播的“360扣扣保镖”软件现有功能，停止诋毁原告及原告的产品和服务的行为；2.连续三个月在相关网站和报纸上就其不正当竞争行为向原告赔礼道歉，消除影响；3.连带赔偿原告经济损失人民币125000000元；4.承担原告维权支出的合理费用及全部诉讼费用。 |
| II. Adjudication | | （二）裁判结果 |
After trial by the Higher People's Court of Guangdong Province as the court of first instance and trial by the Supreme People's Court as the court of second instance, the courts held that: In market economy, the market played a decisive role in resource allocation, and free competition guaranteed the optimal allocation of market resources; however, the market economy required fair, just, and orderly competition. In market transactions, market players should observe the principles of free will, equality, justice, and good faith, and abide by recognized business ethics. Any act that violated the Anti-Unfair Competition Law, impaired the lawful rights and interests of other market players, and disturbed the social and economic order was unfair competition. In this case, for the purpose of achieving their business goals, by inducement of and provision of tools for users, Qihoo Company and others vigorously helped them modify the operation mode of the QQ software and guided users in installing the 360 Security Guard to substitute the QQ Software Security Center, which damaged the security of the relevant services of the QQ software, posted a great threat to the QQ software as a whole, reduced economic returns and value-added service trading opportunities of Tencent Company, and violated the principle of good faith and recognized business ethics. Without any factual basis, Qihoo Company and others alleged that the QQ software would conduct a compulsory check on private files on the hard disk of users, commented on the QQ software by their own standards, and asserted that the QQ software had serious health problems, which had caused users' panic and negative reviews on the QQ software and its services. Such assertion exceeded the scope of proper business reviews and comments, and broken the limits of the law. In the operation of the “Koukou Bodyguard,” Qihoo Company and others embedded their products and services in the QQ software interface and replaced some functions of the QQ software, with the primary purpose of selling and popularizing the 360 Security Guard based on the strong user base of the QQ software and by means of derogating the QQ software and its services to increase its market trading opportunities and seek competitive edge in the market. In essence, such acts of Qihoo Company and other company were acts of improperly taking advantage of others' market achievements to seek business opportunities for themselves and obtain competitive edge. Qihoo Company and others violated the principles of good faith and fair competition, and their acts constituted unfair competition. The courts decided that: (1) Qihoo Company and Qizhi Company should jointly and severally compensate Tencent Company and Tencent Computer Company in the amount of 5 million yuan for their economic losses and reasonable costs in rights protection; and (2) Qihoo Company and Qizhi Company should make a formal apology to Tencent Company and Tencent Computer Company in a conspicuous position of the home pages of their websites (www.360.cn and www.360.com) and the home pages of www.sina.com, www.sohu.com, and www.163.com for 15 consecutive days and in a conspicuous position of the front page of the Legal Daily newspaper and the China Intellectual Property News newspaper for seven consecutive days for their unfair competition, and eliminate adverse effects.
．．．．．． | | 经广东省高级人民法院一审、最高人民法院二审，法院审理认为：市场经济是由市场在资源配置中起决定性作用，自由竞争能够确保市场资源优化配置，但市场经济同时要求竞争公平、正当和有序。经营者在市场交易中，应当遵循自愿、平等、公平、诚实信用的原则，遵守公认的商业道德。违反反不正当竞争法的规定，损害其他经营者的合法权益，扰乱社会经济秩序的行为属于不正当竞争。本案奇虎公司等为达到其商业目的，诱导并提供工具积极帮助用户改变QQ软件的运行方式，并同时引导用户安装360安全卫士，替换QQ软件安全中心，破坏了QQ软件相关服务的安全性并对QQ软件整体具有很强的威胁性，减少了腾讯公司经济收益和增值服务交易机会，违反了诚实信用原则和公认的商业道德。奇虎公司等无事实依据地宣称QQ软件会对用户电脑硬盘隐私文件强制性查看，并且以自己的标准对QQ软件进行评判并宣称QQ存在严重的健康问题，造成了用户对QQ软件及其服务的恐慌及负面评价，该评论已超出正当商业评价、评论的范畴，突破了法律界限。奇虎公司等在经营扣扣保镖时，将自己的产品和服务嵌入QQ软件界面，取代了QQ软件的部分功能，其根本目的在于依附QQ软件强大用户群，通过对QQ软件及其服务进行贬损的手段来推销、推广360安全卫士，从而增加自己市场交易机会并获取市场竞争优势，此行为本质上属于不正当地利用他人市场成果，为自己谋取商业机会从而获取竞争优势的行为。违反了诚实信用和公平竞争原则，构成不正当竞争。判决：1.奇虎公司、奇智公司连带赔偿腾讯公司、腾讯计算机公司经济损失及合理维权费用共计500万元。2.奇虎公司、奇智公司连续15日在其网站（www.360.cn、www.360.com）首页显著位置，在新浪网（www.sina.com）、搜狐网（www.sohu.com）和网易网（www.163.com）网站首页显著位置，连续7日在《法制日报》和《中国知识产权报》第一版显著位置就其不正当竞争行为向腾讯公司、腾讯计算机公司赔礼道歉，消除影响。
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