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Notice of the Supreme People's Court on Issuing the Seventh Group of Guiding Cases | | 最高人民法院关于发布第七批指导性案例的通知 |
(No. 161 [2014] of the Supreme People's Court) | | (法〔2014〕161号) |
The higher people's courts of all provinces, autonomous regions, and municipalities directly under the Central Government; the Military Court of the People's Liberation Army; and the Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uygur Autonomous Region: | | 各省、自治区、直辖市高级人民法院,解放军军事法院,新疆维吾尔自治区高级人民法院生产建设兵团分院: |
Upon deliberation and decision of the Judicial Committee of the Supreme People's Court, the case of theft and fraud by Zang Jinquan, et al and other four cases (Guiding Cases No. 27-31) are hereby issued as the seventh group of guiding cases for references in trial of similar cases. | | 经最高人民法院审判委员会讨论决定,现将臧进泉等盗窃、诈骗案等五个案例(指导案例27-31号),作为第七批指导性案例发布,供在审判类似案件时参照。 |
Supreme People's Court | | 最高人民法院 |
June 26, 2014 | | 2014年6月26日 |
Guiding Case No. 27 | | 指导案例27号 |
Case of Theft and Fraud by Zang Jinquan et al. | | 臧进泉等盗窃、诈骗案 |
(Issued on June 23, 2014 as adopted by the Judicial Committee of the Supreme People's Court after deliberation) | | (最高人民法院审判委员会讨论通过 2014年6月23日发布) |
Keywords: criminal; theft; fraud; use of information network | | 关键词 刑事 盗窃 诈骗 利用信息网络 |
Key Points of Judgment | | 裁判要点 |
Where an actor induces others into clicking a false link by using the information network and actually steals property through a pre-embedded computer program, and a crime is constituted, the actor shall be convicted and punished for the crime of theft; and where an actor defrauds property of others by fabricating commodities or services available for trading and cheating others into clicking a payment link, and a crime is constituted, the actor shall be convicted and punished for the crime of fraud. | | 行为人利用信息网络,诱骗他人点击虚假链接而实际通过预先植入的计算机程序窃取财物构成犯罪的,以盗窃罪定罪处罚;虚构可供交易的商品或者服务,欺骗他人点击付款链接而骗取财物构成犯罪的,以诈骗罪定罪处罚。 |
Relevant Legal Provisions | | 相关法条 |
Articles 264 and 266 of the Criminal Law of the People's Republic of China | | 《中华人民共和国刑法》第二百六十四条、第二百六十六条 |
Basic Facts | | 基本案情 |
I. Facts of Theft | | 一、盗窃事实 |
On June 1, 2010, after defrauding a victim surnamed Jin of 195 yuan, defendant Zheng Biling learned that there were deposits of over 305,000 yuan in Jin's CCB e-bank account and there was no daily pay limitation. Afterwards, Zheng called defendant Zang Jinquan and they premeditated to commit the crime together. After arrival at the net bar, on the ground that he failed to view the record of Jin's successful payment, Zang Jinquan sent Jin a false link with a marked transaction amount of 1 yuan, which was actually embedded with a computer program of payment of 305,000 yuan, and lied to Jin that after Jin clicked the payment link of 1 yuan, he would immediately view the record of Jin's successful payment. Jin was induced to click the false link and 305,000 yuan in his CCB e-bank account was immediately paid to the account “kissa123,” which was registered by Zang Jinquan with Fuzhou Haidu Yangguang Information Technology Co., Ltd. beforehand via the platform of Shanghai 99Bill Information Service Co., Ltd. through the computer program preset by Zang Jinquan. Zang Jinquan used 116,863 yuan therein in purchasing a large number of game cards and sold them in the Taobao shop titled “Mr. Xiaoquan Oh” for cash-out. After the case was exposed, the public security authority recovered the illegal proceeds of 187,126.31 yuan and returned it to the victim. | | 2010年6月1日,被告人郑必玲骗取被害人金某195元后,获悉金某的建设银行网银账户内有305000余元存款且无每日支付限额,遂电话告知被告人臧进泉,预谋合伙作案。臧进泉赶至网吧后,以尚未看到金某付款成功的记录为由,发送给金某一个交易金额标注为1 元而实际植入了支付305000 元的计算机程序的虚假链接,谎称金某点击该1元支付链接后,其即可查看到付款成功的记录。金某在诱导下点击了该虚假链接,其建设银行网银账户中的305000元随即通过臧进泉预设的计算机程序,经上海快钱信息服务有限公司的平台支付到臧进泉提前在福州海都阳光信息科技有限公司注册的“kissal23”账户中。臧进泉使用其中的116863元购买大量游戏点卡,并在“小泉先生哦”的淘宝网店上出售套现。案发后,公安机关追回赃款187126.31元发还被害人。 |
II. Facts of Fraud | | 二、诈骗事实 |
From May to June 2010, defendants Zang Jinquan, Zheng Biling, and Liu Tao opened shops on Taobao ( HYPERLINK "http://www.taobao.com" www.taobao.com) that were out of stock in fake identities respectively, and attracted buyers at low prices. These three defendants registered an account on an online game website beforehand and preset a recharge program for this account, with the amount of recharge going to be paid by a buyer. Afterwards, they embedded this recharge program to a false Taobao link. After reaching a good price with the buyer, the three defendants sent a false Taobao link to the buyer respectively through the chat tool of AliWangWang by claiming that it facilitated the buyer's shopping. The buyer took it for a Taobao link and clicked this link to do shopping or make payment, and believed that the payment he or she made has been deposited to the public account that was established by Alipay Company for secured transactions; however, the payment was actually transferred to a private Alipay account of the online game website through the preset program and then was transferred to the recharge account that has been registered by defendants on the online game website beforehand. After obtaining the payment made by the buyer, the three defendants purchased game cards and Tencent QQ coins on the online game website, such game cards and QQ coins were uniformly for sale in the Taobao shop of Zang Jinquan titled “Mr. Xiaoquan Oh” as agreed upon beforehand for cash-out, and the incomes were deposited to the ICBC card of Zang Jinquan, who then allocated the amount of profits in a way as agreed upon. | | 2010 年5月至6月间,被告人臧进泉、郑必玲、刘涛分别以虚假身份开设无货可供的淘宝网店铺,并以低价吸引买家。三被告人事先在网游网站注册一账户,并对该账户预设充值程序,充值金额为买家欲支付的金额,后将该充值程序代码植入到一个虚假淘宝网链接中。与买家商谈好商品价格后,三被告人各自以方便买家购物为由,将该虚假淘宝网链接通过阿里旺旺聊天工具发送给买家。买家误以为是淘宝网链接而点击该链接进行购物、付款,并认为所付货款会汇入支付宝公司为担保交易而设立的公用账户,但该货款实际通过预设程序转入网游网站在支付宝公司的私人账户,再转入被告人事先在网游网站注册的充值账户中。三被告人获取买家货款后,在网游网站购买游戏点卡、腾讯Q币等,然后将其按事先约定统一放在臧进泉的“小泉先生哦”的淘宝网店铺上出售套现,所得款均汇入臧进泉的工商银行卡中,由臧进泉按照获利额以约定方式分配。 |
Upon premeditation, defendants Zang Jinquan, Zheng Biling, and Liu Tao went to the net bars in Suzhou, Wuxi, and Kunshan of Jiangsu Province in succession and committed crimes by the said means. Zang Jinquan defrauded 22,000 yuan and made a profit of over 5,000 yuan, Zheng Biling made a fraud profit of over 5,000 yuan, and Liu Tao made a fraud profit of over 12,000 yuan. | | 被告人臧进泉、郑必玲、刘涛经预谋后,先后到江苏省苏州市、无锡市、昆山市等地网吧采用上述手段作案。臧进泉诈骗22000元,获利5000余元,郑必玲诈骗获利5000余元,刘涛诈骗获利12000余元。 |
Judgment | | 裁判结果 |
On June 1, 2011, the Intermediate People's Court of Hangzhou City, Zhejiang Province rendered a criminal judgment (No. 91 [2011], First, Criminal DivisionI, Hangzhou) that: (1) For the crime of theft, defendant Zang Jinquan should be sentenced to a fixed-term imprisonment of thirteen years, with deprival of political rights for one year, and a fine of 30,000 yuan should be imposed upon him; for the crime of fraud, Zang Jinquan should be sentenced to a fixed-term imprisonment of two years and a fine of 5,000 yuan should be imposed upon him. The court decided to execute the fixed-term imprisonment of fourteen years and six months, with deprival of political rights for one year, and a fine of 35,000 yuan. (2) For the crime of theft, defendant Zheng Biling should be sentenced to a fixed-term imprisonment of ten years, with deprival of political rights for one year, and a fine of 10,000 yuan should be imposed upon her; for the crime of fraud, Zheng Biling should be sentenced to a fixed-term imprisonment of six months and a fine of 2,000 yuan should be imposed upon her. The court decided to execute the fixed-term imprisonment of ten years and three months, with deprival of political rights for one year, and a fine of 12,000 yuan. (3) For the crime of fraud, defendant Liu Tao should be sentenced to a fixed-term imprisonment of one year and six months and a fine of 5,000 yuan should be imposed upon him. After this judgment was delivered, Zang Jinquan appealed. On August 9, 2011, the Higher People's Court of Zhejiang Province rendered a criminal ruling (No. 132 [2011], Final, Criminal DivisionIII, Zhejiang) to dismiss the appeal and affirm the original judgment. | | 浙江省杭州市中级人民法院于2011年6月1日作出(2011)浙杭刑初字第91号刑事判决:一、被告人臧进泉犯盗窃罪,判处有期徒刑十三年,剥夺政治权利一年,并处罚金人民币三万元;犯诈骗罪,判处有期徒刑二年,并处罚金人民币五千元,决定执行有期徒刑十四年六个月,剥夺政治权利一年,并处罚金人民币三万五千元。二、被告人郑必玲犯盗窃罪,判处有期徒刑十年,剥夺政治权利一年,并处罚金人民币一万元;犯诈骗罪,判处有期徒刑六个月,并处罚金人民币二千元,决定执行有期徒刑十年三个月,剥夺政治权利一年,并处罚金人民币一万二千元。三、被告人刘涛犯诈骗罪,判处有期徒刑一年六个月,并处罚金人民币五千元。宣判后,臧进泉提出上诉。浙江省高级人民法院于2011年8月9日作出(2011)浙刑三终字第132号刑事裁定,驳回上诉,维持原判。 |
Judgment's Reasoning | | 裁判理由 |
In the effective judgment, the court held that: Theft refers to an act of secretly stealing public or private property for the purpose of illegal occupation; and fraud refers to an act of defrauding public or private property by fabricating a fact or concealing the truth for the purpose of illegal occupation. In the determination of the nature of an act of illegally occupying property by both secret stealing and fraud, theft and fraud should be differentiated from the main means adopted by an actor and whether the victim was aware of the disposition of property. If secret stealing was the means that played a decisive role in the actor's obtaining of the property, fraud only created conditions for theft or only served as a screen, and the victim did not “voluntarily” deliver the property, it should be determined as theft; and if fraud was the means that played a decisive role in the actor's obtaining of the property, the victim “voluntarily” delivered the property based on wrong understanding, and theft was only an auxiliary means, it should be determined as fraud. Under the circumstance of information network, where an actor steals any other person's property by making use of the information network and inducing any other person into clicking a false link that is actually a pre-embedded computer program, and a crime is constituted, the actor should be convicted and punished for the crime of theft; and where an actor fabricates an available commodity or service for trading, cheats any other person into clicking a payment link to make payment, and obtains the property, and a crime is constituted, the actor should be convicted and punished for the crime of fraud. In this case, defendants Zang Jinquan and Zheng Biling adopted the method of using a preset computer program and embedding it, and secretly stole a large amount of money from any other person's online bank account. Their acts have constituted a crime of theft. For the purpose of illegal occupation, Zang Jinquan, Zheng Biling and defendant Liu Tao defrauded any other person of a large amount of money by means of opening up a false online shop and making use of a forged shopping link. Their acts have all constituted a crime of fraud. Since Zang Jinquan and Zheng Biling committed several crimes, they should be subject to the joinder of penalties according to the law. | | 法院生效裁判认为:盗窃是指以非法占有为目的,秘密窃取公私财物的行为;诈骗是指以非法占有为目的,采用虚构事实或者隐瞒真相的方法,骗取公私财物的行为。对既采取秘密窃取手段又采取欺骗手段非法占有财物行为的定性,应从行为人采取主要手段和被害人有无处分财物意识方面区分盗窃与诈骗。如果行为人获取财物时起决定性作用的手段是秘密窃取,诈骗行为只是为盗窃创造条件或作掩护,被害人也没有“自愿”交付财物的,就应当认定为盗窃;如果行为人获取财物时起决定性作用的手段是诈骗,被害人基于错误认识而“自愿”交付财物,盗窃行为只是辅助手段的,就应当认定为诈骗。在信息网络情形下,行为人利用信息网络,诱骗他人点击虚假链接而实际上通过预先植入的计算机程序窃取他人财物构成犯罪的,应当以盗窃罪定罪处罚;行为人虚构可供交易的商品或者服务,欺骗他人为支付货款点击付款链接而获取财物构成犯罪的,应当以诈骗罪定罪处罚。本案中,被告人臧进泉、郑必玲使用预设计算机程序并植入的方法,秘密窃取他人网上银行账户内巨额钱款,其行为均已构成盗窃罪。臧进泉、郑必玲和被告人刘涛以非法占有为目的,通过开设虚假的网络店铺和利用伪造的购物链接骗取他人数额较大的货款,其行为均已构成诈骗罪。对臧进泉、郑必玲所犯数罪,应依法并罚。 |
For the contention and defense opinions raised by defendant Zang Jinquan and his defender that the act of obtaining 305,000 yuan from the online bank account of the victim surnamed Jin constituted a crime of fraud other than a crime of theft, it was found upon examination that: After learning that there was money in the online bank account of Jin, Zang Jinquan and defendant Zheng Biling immediately had the idea of illegal occupation by means of the embedded computer program; later in the online chat, they induced Jin to consent to pay one yuan, but actually made a false Taobao link, which was a superficial link of “one yuan” but was actually a payment link of 305,000 yuan. After Jin clicked the link, the amount of 305,000 yuan in the online bank account was immediately transferred to the registered account of Zang Jinquan, of which Jin was neither aware nor was of his own accord. It could be seen that secret stealing was the means that played a decisive role in Zang Jinquan and Zheng Biling's obtaining of the property, inducing the victim to click the false link of “one yuan” was an auxiliary means for committing the theft and such means only created conditions for the theft or served as a screen, the victim did not “voluntarily” deliver the large amount of property, and the obtained bank deposit was actually stolen by means of a hidden pre-embedded computer program. The said facts conformed to key constitutive elements of the crime of theft. In accordance with the provisions of Articles 264 and 287 of the Criminal Law, they should be convicted and punished for the crime of theft. Therefore, the said contention and defense opinions raised by Zang Jinquan and his defender were inconsistent with facts and legal provisions and should not be admitted. | | 关于被告人臧进泉及其辩护人所提非法获取被害人金某的网银账户内305000元的行为,不构成盗窃罪而是诈骗罪的辩解与辩护意见,经查,臧进泉和被告人郑必玲在得知金某网银账户内有款后,即产生了通过植入计算机程序非法占有目的;随后在网络聊天中诱导金某同意支付1元钱,而实际上制作了一个表面付款“1元”却支付305000元的假淘宝网链接,致使金某点击后,其网银账户内305000元即被非法转移到臧进泉的注册账户中,对此金某既不知情,也非自愿。可见,臧进泉、郑必玲获取财物时起决定性作用的手段是秘密窃取,诱骗被害人点击“1元”的虚假链接系实施盗窃的辅助手段,只是为盗窃创造条件或作掩护,被害人也没有“自愿”交付巨额财物,获取银行存款实际上是通过隐藏的事先植入的计算机程序来窃取的,符合盗窃罪的犯罪构成要件,依照刑法第二百六十四条、第二百八十七条的规定,应当以盗窃罪定罪处罚。故臧进泉及其辩护人所提上述辩解和辩护意见与事实和法律规定不符,不予采纳。 |
Guiding Case No. 28 | | 指导案例28号 |
Case of Refusal to Pay Labor Remuneration by Hu Kejin | | 胡克金拒不支付劳动报酬案 |
(Issued on June 23, 2014 as adopted by the Judicial Committee of the Supreme People's Court after deliberation) | | (最高人民法院审判委员会讨论通过 2014年6月23日发布) |
Keywords: criminal; crime of refusal to pay labor remuneration; entity or individual without employment qualification | | 关键词 刑事 拒不支付劳动报酬罪 不具备用工主体资格的单位或者个人 |
Key Points of Judgment | | 裁判要点 |
1. Where any entity or individual (labor contractor) without employment qualification illegally employs workers and refuses to pay remunerations to such workers, the amount is relatively large, and such entity or individual still fails to make payment after being ordered to do so by the relevant department of the government, such entity or individual shall be subject to criminal liability for the crime of refusal to pay labor remuneration. | | 1.不具备用工主体资格的单位或者个人(包工头),违法用工且拒不支付劳动者报酬,数额较大,经政府有关部门责令支付仍不支付的,应当以拒不支付劳动报酬罪追究刑事责任。 |
2. Where any entity or individual (labor contractor) without employment qualification refuses to pay labor remuneration, even if any other entity or individual has paid such labor remuneration on its or his behalf before a criminal case is filed, it will not affect the investigation of criminal liabilities of the employer or individual (labor contractor) for its or his crime of refusal to pay labor remuneration. | | 2.不具备用工主体资格的单位或者个人(包工头)拒不支付劳动报酬,即使其他单位或者个人在刑事立案前为其垫付了劳动报酬的,也不影响追究该用工单位或者个人(包工头)拒不支付劳动报酬罪的刑事责任。 |
Relevant Legal Provisions | | 相关法条 |
Paragraph 1 of Article 276A of the Criminal Law of the People's Republic of China | | 《中华人民共和国刑法》第二百七十六条之一第一款 |
Basic Facts | | 基本案情 |
In December 2010, defendant Hu Kejin subcontracted some construction work of PhaseI landscape works of Philippe Hills Villa located in Huangshui Township, Shuangliu County, Sichuan Province and afterwards he employed multiple civilian workers to enter the site and conduct construction. During the construction period, Hu Kejin has accumulatively received the project payment of over 510,000 yuan paid by the project employer, which has exceeded the actual project payment as confirmed during settlement. On June 5, 2011 after the project was completed, Hu Kejin delayed the payment of salaries amounting to 120,000 yuan to Li Chaowen and other 19 civilian workers. On June 9, the Human Resources and Social Security Bureau of Shuangliu County ordered Hu Kejin to pay the overdue salaries to such civilian workers, but Hu ordered a plane ticket on the same night and escaped by plane on the morning of the next day. On June 30, Sichuan Jintianxia Garden Engineering Co., Ltd., as the general contractor of the project, paid salaries of over 120,000 yuan to civilian workers on behalf of Hu Kejin. On July 4, the public security organ filed the case of refusal to pay labor remuneration by Hu Kejin for investigation. On July 12, Hu Kejin was arrested in Cixi City, Zhejiang Province. | | 被告人胡克金于2010年12月分包了位于四川省双流县黄水镇的三盛翡俪山一期景观工程的部分施工工程,之后聘用多名民工入场施工。施工期间,胡克金累计收到发包人支付的工程款51万余元,已超过结算时确认的实际工程款。2011年6月5日工程完工后,胡克金以工程亏损为由拖欠李朝文等20余名民工工资12万余元。6月9日,双流县人力资源和社会保障局责令胡克金支付拖欠的民工工资,胡却于当晚订购机票并在次日早上乘飞机逃匿。6月30日,四川锦天下园林工程有限公司作为工程总承包商代胡克金垫付民工工资12万余元。7月4日,公安机关对胡克金拒不支付劳动报酬案立案侦查。7月12日,胡克金在浙江省慈溪市被抓获。 |
Judgment | | 裁判结果 |
On December 29, 2011, the People's Court of Shuangliu County, Sichuan Province rendered a criminal judgment (No. 544 [2011], First, Criminal DivisionI, Shuangliu), which determined that defendant Hu Kejin committed the crime of refusal to pay labor remuneration, Hu Kejin should be sentenced to a fixed-term imprisonment of one year, and a fine of 20,000 yuan should be imposed on him. After this judgment was delivered, defendant did not appeal and the judgment has come into force. | | 四川省双流县人民法院于2011年12月29日作出(2011)双流刑初字第544号刑事判决,认定被告人胡克金犯拒不支付劳动报酬罪,判处有期徒刑一年,并处罚金人民币二万元。宣判后被告人未上诉,判决已发生法律效力。 |
Judgment's Reasoning | | 裁判理由 |
In the effective judgment, the court held that: Defendant Hu Kejin refused to pay the labor remuneration of over 120,000 yuan to over 20 civilian workers, the amount was relatively large, and Hu escaped after he was ordered by the relevant department of the government to make payment, his acts constituted a crime of refusal to pay labor remuneration. While defendant Hu Kejin had no legitimate employment qualification, contracted the construction project without corresponding construction qualification, and illegally employed civilian workers to conduct construction, the aforesaid circumstances did not affect the investigation of Hu's criminal liability for the crime of refusal to pay labor remuneration. In this case, after Hu Kejin escaped, the general contractor of the project paid off the salaries in arrears unpaid by Hu Kejin to civilian workers as required, which was an act of payment on behalf of Hu Kejin. And this act reduced social harmfulness of the default, but it could not exempt Hu Kejin from the liability of paying labor remuneration. Therefore, Hu Kejin should still be subject to criminal liability for the crime of refusal to pay labor remuneration. Considering that Hu Kejin was a first offender and showed repentance, the aforesaid judgment was rendered according to the law. | | 法院生效裁判认为:被告人胡克金拒不支付20余名民工的劳动报酬达12万余元,数额较大,且在政府有关部门责令其支付后逃匿,其行为构成拒不支付劳动报酬罪。被告人胡克金虽然不具有合法的用工资格,又属没有相应建筑工程施工资质而承包建筑工程施工项目,且违法招用民工进行施工,上述情况不影响以拒不支付劳动报酬罪追究其刑事责任。本案中,胡克金逃匿后,工程总承包企业按照有关规定清偿了胡克金拖欠的民工工资,其清偿拖欠民工工资的行为属于为胡克金垫付,这一行为虽然消减了拖欠行为的社会危害性,但并不能免除胡克金应当支付劳动报酬的责任,因此,对胡克金仍应当以拒不支付劳动报酬罪追究刑事责任。鉴于胡克金系初犯、认罪态度好,依法作出如上判决。 |
Guiding Case No. 29 | | 指导案例29号 |
Tianjin China Youth Travel Service v. Tianjin National Youth International Travel Service (Dispute over use of other enterprise's name without authorization) | | 天津中国青年旅行社诉天津国青国际 旅行社擅自使用他人企业名称纠纷案 |
(Issued on June 26, 2014 as adopted by the Judicial Committee of the Supreme People's Court after deliberation) | | (最高人民法院审判委员会讨论通过 2014年6月26日发布) |
Keywords: civil; unfair competition; use of other enterprise's name without authorization | | 关键词 民事 不正当竞争 擅用他人企业名称 |
Key Points of Judgment | | 裁判要点 |
1. The abbreviation of an enterprise's name that is widely used by the enterprise to outsiders for a long term, enjoys certain market popularity, is known to the relevant public, and has actually played the role of trade name may be deemed as an enterprise name to be protected. | | 1.对于企业长期、广泛对外使用,具有一定市场知名度、为相关公众所知悉,已实际具有商号作用的企业名称简称,可以视为企业名称予以保护。 |
2. The use of the abbreviation of an enterprise name of others that actually plays the role of trade name as the keyword in the Internet bidding rank in commercial activities without authorization, which causes the relevant public confusion and misunderstanding, is an act of unfair competition. | | 2.擅自将他人已实际具有商号作用的企业名称简称作为商业活动中互联网竞价排名关键词,使相关公众产生混淆误认的,属于不正当竞争行为。 |
Relevant Legal Provisions | | 相关法条 |
1. Article 120 of the General Principles of the Civil Law of the People's Republic of China | | 1.《中华人民共和国民法通则》第一百二十条 |
2. Article 5 of the Anti-Unfair Competition Law of the People's Republic of China | | 2.《中华人民共和国反不正当竞争法》第五条 |
Basic Facts | | 基本案情 |
Plaintiff Tianjin China Youth Travel Service (hereinafter referred to as the “CYTS”) alleged that: Defendant Tianjin National Youth International Travel Service Co., Ltd. illegally used the full name of plaintiff or the abbreviation thereof (“CYTS”) on its web page with all rights reserved, website source codes, and search engines, which violated the provisions of the Anti-Unfair Competition Law. Plaintiff requested to order that defendant should immediately stop its act of unfair competition, make a public apology, compensate economic losses of 100,000 yuan, and bear the litigation costs. | | 原告天津中国青年旅行社(以下简称天津青旅)诉称:被告天津国青国际旅行社有限公司在其版权所有的网站页面、网站源代码以及搜索引擎中,非法使用原告企业名称全称及简称“天津青旅”,违反了反不正当竞争法的规定,请求判令被告立即停止不正当竞争行为、公开赔礼道歉、赔偿经济损失10万元,并承担诉讼费用。 |
Defendant Tianjin National Youth International Travel Service Co., Ltd. (hereinafter referred to as “NYTS”) contended that: “CYTS” was not registered and not enjoyed by plaintiff, the losses claimed by plaintiff had no factual and legal basis, and it requested to dismiss the claims of plaintiff. | | 被告天津国青国际旅行社有限公司(以下简称天津国青旅)辩称:“天津青旅”没有登记注册,并不由原告享有,原告主张的损失没有事实和法律依据,请求驳回原告诉讼请求。 |
After a hearing, the court found that: Tianjin China Youth Travel Service was established on November 1, 1986. It is a state-owned enterprise directly under the Communist Youth League of the CPC Tianjin Committee that engages in domestic, inbound and outbound travel business. It was shown in the certification issued by the Communist Youth Leagues of the CPC Tianjin Committee that “CYTS” was the enterprise abbreviation of Tianjin China Youth Travel Service. In 2007, Today Evening and other media started to use the abbreviation of “CYTS” to substitute Tianjin China Youth Travel Service. CYTS used “CYTS” as its enterprise abbreviation in such materials as quotations, travel contracts, cooperation documents with operators in the same industry, and invoices as well as daily business activities such as signboards of stores at the business site. Tianjin National Youth International Travel Service Co., Ltd. was established on July 6, 2010 and is a limited liability company engaged in domestic travel, inbound travel reception, and other business. | | 法院经审理查明:天津中国青年旅行社于1986年11月1日成立,是从事国内及出入境旅游业务的国有企业,直属于共青团天津市委员会。共青团天津市委员会出具证明称,“天津青旅”是天津中国青年旅行社的企业简称。2007年,《今晚报》等媒体在报道天津中国青年旅行社承办的活动中已开始以“天津青旅”简称指代天津中国青年旅行社。天津青旅在报价单、旅游合同、与同行业经营者合作文件、发票等资料以及经营场所各门店招牌上等日常经营活动中,使用“天津青旅”作为企业的简称。天津国青国际旅行社有限公司于2010年7月6日成立,是从事国内旅游及入境旅游接待等业务的有限责任公司。 |
At the end of 2010, CYTS found that when “Tianjin China Youth Travel Service” or “CYTS” was searched through Google, the search engine, “Online Business Hall of Tianjin China Youth Travel Service www.lechuyou.com or Online Business Hall of NYTS is your ideal choice and provides you with quality, intimate, and comfortable services” or “Online Business Hall of CYTS www.lechuyou.com or Online Business Hall of NYTS is your ideal choice and provides you with quality, intimate, and comfortable services” was displayed in the position showing the first search results marked with sponsored links. The website entered upon clicking was www.lechuyou.com, which was marked as Tianjin National Youth International Travel Service, with such words as “Tianjin National Youth International Travel Service—Youth Travel Service/Tianjin International Travel Service” displaying on the top of the web page. The content of the web page was about travel business information and quotations of NYTS with all rights reserved: www.lechuyou.com—NYTS, and the contact information and business address of NYTS were also marked. Meanwhile, when “CYTS” was searched by CYTS through Baidu, the search engine, “Welcome to CYTS, an entity strictly abiding by contracts and standing by reputation that collects classic domestic and outbound travel routes and has 100% tours. CYTS 400-611-5253 022.ctsgz.cn” was displayed in the position showing the first search results marked with sponsored links, and the web page entered upon clicking was still the said website that was alleged to be www.lechuyou.com of NYTS. | | 2010年底,天津青旅发现通过Google搜索引擎分别搜索“天津中国青年旅行社”或“天津青旅”,在搜索结果的第一名并标注赞助商链接的位置,分别显示“天津中国青年旅行社网上营业厅 www.lechuyou.com天津国青网上在线营业厅,是您理想选择,出行提供优质、贴心、舒心的服务”或“天津青旅网上营业厅 www.lechuyou.com天津国青网上在线营业厅,是您理想选择,出行提供优质、贴心、舒心的服务”,点击链接后进入网页是标称天津国青国际旅行社乐出游网的网站,网页顶端出现“天津国青国际旅行社-青年旅行社青旅/天津国旅”等字样,网页内容为天津国青旅游业务信息及报价,标称网站版权所有:乐出游网-天津国青,并标明了天津国青的联系电话和经营地址。同时,天津青旅通过百度搜索引擎搜索“天津青旅”,在搜索结果的第一名并标注推广链接的位置,显示“欢迎光临天津青旅重合同守信誉单位,汇集国内出境经典旅游线路,100%出团,天津青旅400-611-5253 022.ctsgz.cn”,点击链接后进入网页仍然是上述标称天津国青乐出游网的网站。 |
Judgment | | 裁判结果 |
On October 24, 2011, the No. 2 Intermediate People's Court of Tianjin Municipality rendered a civil judgment (No. 135 [2011], First, Civil DivisionIII, No. 2 IPO, Tianjin) that: (1) Defendant Tianjin National Youth International Travel Service Co., Ltd. should immediately stop its infringement; (2) Defendant should, within 30 days from the effective date of the judgment, issue an apologetic statement on its website for consecutive 15 days; (3) Defendant should pay plaintiff Tianjin China Youth Travel Service 30,000 yuan for its economic losses; and (4) Other claims of plaintiff should be dismissed. After the judgment was delivered, NYTS appealed. On March 20, 2012, the Higher People's Court of Tianjin Municipality rendered a civil judgment (No. 3 [2012], Final, Civil DivisionIII, HPO, Tianjin) that: (1) Items (2), (3), and (4) of the said civil judgment rendered by the No. 2 Intermediate People's Court of Tianjin Municipality should be affirmed; (2) Item (1) of the said judgment that “Defendant Tianjin National Youth International Travel Service Co., Ltd. should immediately stop its infringement” should be altered to that “Defendant Tianjin National Youth International Travel Service Co., Ltd. should immediately stop the use of such words as ‘Tianjin China Youth Travel Service' and ‘CYTS' and should not use them as keywords for searching the website link of Tianjin National Youth International Travel Service Co., Ltd.”; and (3) Other claims of defendant should be dismissed. | | 天津市第二中级人民法院于2011年10月24日作出(2011)二中民三知初字第135号民事判决:一、被告天津国青国际旅行社有限公司立即停止侵害行为;二、被告于本判决生效之日起三十日内,在其公司网站上发布致歉声明持续15天;三、被告赔偿原告天津中国青年旅行社经济损失30000元;四、驳回原告其他诉讼请求。宣判后,天津国青旅提出上诉。天津市高级人民法院于2012年3月20日作出(2012)津高民三终字第3号民事判决:一、维持天津市第二中级人民法院上述民事判决第二、三、四项;二、变更判决第一项“被告天津国青国际旅行社有限公司立即停止侵害行为”为“被告天津国青国际旅行社有限公司立即停止使用‘天津中国青年旅行社'、‘天津青旅'字样及作为天津国青国际旅行社有限公司网站的搜索链接关键词”;三、驳回被告其他上诉请求。 |
Judgment's Reasoning | | 裁判理由 |
In the effective judgment, the court held that: Paragraph 1 of Article 6 of the Interpretation of the Supreme People's Court on Some Issues concerning the Application of Law in the Trial of Civil Cases Involving Unfair Competition provides that “An enterprise name registered by the enterprise registration authority and a foreign enterprise name used within the territory of China for commercial use shall be affirmed as an ‘enterprise name' as prescribed in Item (3) of Article 5 of the Anti-Unfair Competition Law. A trade name in the enterprise name that has certain market popularity and is known by the relevant public may be recognized as an ‘enterprise name' as prescribed in Item (3) of Article 5 of the Anti-Unfair Competition Law.” Therefore, the abbreviation of an enterprise name that was widely used by the enterprise to outsiders for a long term, enjoyed certain market popularity, was known to the relevant public, and has actually played the role of trade name should be deemed as an enterprise name to be protected. “Tianjin China Youth Travel Service” was an enterprise name used by plaintiff since its establishment in 1986 and plaintiff had the exclusive right to use the enterprise name. As the abbreviation of its enterprise name, “CYTS” has been widely used by CYTS in its business activities since 2007. In the relevant media coverage and according to clients, “CYTS” was referred to Tianjin China Youth Travel Service. Upon use and publicity in business activities for many years, CYTS has enjoyed some market popularity, was known to the relevant public, has established a stable association with Tianjin China Youth Travel Service, and had the significance of commercial logo that was capable of identifying business entities. Therefore, “CYTS” may be deemed as an enterprise name and should be jointly protected with “Tianjin China Youth Travel Service.” ...... | | 法院生效裁判认为:根据《最高人民法院关于审理不正当竞争民事案件应用法律若干问题的解释》第六条第一款规定:“企业登记主管机关依法登记注册的企业名称,以及在中国境内进行商业使用的外国(地区)企业名称,应当认定为反不正当竞争法第五条第(三)项规定的‘企业名称'。天津中国青年旅行社诉天津国青国际 旅行社擅自使用他人企业名称纠纷案具有一定的市场知名度、为相关公众所知悉的企业名称中的字号,可以认定为反不正当竞争法第五条第(三)项规定的‘企业名称'。”因此,对于企业长期、广泛对外使用,具有一定市场知名度、为相关公众所知悉,已实际具有商号作用的企业名称简称,也应当视为企业名称予以保护。“天津中国青年旅行社”是原告1986年成立以来一直使用的企业名称,原告享有企业名称专用权。“天津青旅”作为其企业名称简称,于2007年就已被其在经营活动中广泛使用,相关宣传报道和客户也以“天津青旅”指代天津中国青年旅行社,经过多年在经营活动中使用和宣传,已享有一定市场知名度,为相关公众所知悉,已与天津中国青年旅行社之间建立起稳定的关联关系,具有可以识别经营主体的商业标识意义。所以,可以将“天津青旅”视为企业名称与“天津中国青年旅行社”共同加以保护。 ...... |
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