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Wang Liyi and Zhang Lixia v. Shanghai Galaxy Hotel (Dispute over Compensation)
王利毅、张丽霞诉上海银河宾馆赔偿纠纷案
【法宝引证码】

Wang Liyi and Zhang Lixia v. Shanghai Galaxy Hotel (Dispute over Compensation)
(Dispute over Compensation)
王利毅、张丽霞诉上海银河宾馆赔偿纠纷案

Wang Liyi and Zhang Lixia v. Shanghai Galaxy Hotel
(Dispute over Compensation)

 

王利毅、张丽霞诉上海银河宾馆赔偿纠纷案

BASIC FACTS 
Plaintiffs: Wang Liyi, male, 53, an employee from Shekou Sub-branch, Shenzhen Branch, Bank of China, he was domiciled in Shenzhen City, Guangdong Province; 原告:王利毅,男,53岁,中国银行深圳分行蛇口支行职工,住广东省深圳市。
Zhang Lixia, female, 50, an employee from Shenzhen City Hanshi Industrial Co., Ltd., her domicile is the same place as the above. 原告:张丽霞,女,50岁,深圳市瀚适实业有限公司职工,住址同上。
Represented by: Tao Wuping and Wang Rong, lawyers from Shanghai Shenda Law Firm. 二原告委托代理人:陶武平、王嵘,上海市申达律师事务所律师。
Defendant: Shanghai Galaxy Hotel, its domicile is No. 888 Zhongshan West Road, Shanghai. 被告:上海银河宾馆,住所地:上海市中山西路888号。
Legal representative: Zhao Renrong, general manager of the Hotel. 法定代表人:赵仁荣,该宾馆总经理。
Represented by: Guo Li, male, 50, a cadre from the Committee of Changning District, Shanghai Municipality of CPPCC; 委托代理人:郭立,男,50岁,政协上海市长宁区委员会干部。
Guo Jie, a lawyer from Shanghai Xinhua Law Firm. 委托代理人:郭杰,上海市新华律师事务所律师。
The plaintiffs, Wang Liyi and Zhang Lixia (hereinafter referred to as “Zhang”), filed a claim at the People's Court of Changning District, Shanghai Municipality (hereinafter referred to as “Changning Court”) against Shanghai Galaxy Hotel (hereinafter referred to as “Galaxy”), the defendant, concerning their dispute over compensation. 原告王利毅、张丽霞因与被告上海银河宾馆发生赔偿纠纷,向上海市长宁区人民法院提起诉讼。
Wang Liyi and Zhang claimed: Galaxy's television monitoring and control system was existing in name only, and its security employees and inspectors seriously neglected their duties. A criminal stayed in the hotel for three hours, but there was no one to check his certificates or register his visit according to the rules of the Hotel, and the criminal's acts were not at all noticed. Since Galaxy was not conscientious for the security of the Hotel, Wang Han, their daughter, was murdered and robbed of her properties by the criminal during her accommodation in the Hotel. There was causality between Wang Han's being murdered and Galaxy's faults, thus Galaxy should bear the compensation liability for its tort. In addition, Galaxy also promised its guests that it would provide “24 hours of security inspection to guarantee your personal safety”, and said it would bear the liabilities including compensation liability, if its services did not conform to its promises. Moreover, it is also provided in “Law of the People's Republic of China on the Protection of Consumer Rights and Interests” that a consumer may demand the service provider for compensation if his legitimate rights and interests have been damaged when he is receiving the services. Therefore, Wang Liyi and Zhang held that, Galaxy should bear the compensation liability for tort, and the legal liability for breach of contract in accordance with “Contract Law of the People's Republic of China”, and the liability for infringing upon the consumer rights and interests in accordance with the Law on the Protection of Consumer Rights and Interests. Wang Liyi and Zhang requested Changning Court to rule that Galaxy acknowledge its faults and apologize to them, and also compensate the plaintiffs 798,860 Yuan for the economic losses (including 28,300 Yuan of properties robbed of Wang Han, 231,793 Yuan of funeral expenses, 95,967 Yuan of expenses for trip and accommodation, and 44,2800 Yuan of education and rearing expenses), as well as 500,000 Yuan of mental losses. 原告诉称:被告的宾馆电视监控系统形同虚设,保安和安全巡检人员严重失职,犯罪分子在该宾馆内逗留长达三个小时,都无人查验其证件和按照规定进行访客登记,以至对犯罪分子的行为毫无察觉。由于被告对宾馆的安全不负责任,致使二原告的女儿王翰在入住宾馆期间被犯罪分子杀害,财物被劫。王翰的遇害与被告的过错有因果关系,被告应当承担侵权赔偿责任。另外,被告对入住其宾馆的旅客有“24小时的保安巡视,确保您的人身安全”的承诺,还说如果服务不符承诺内容,原承担包括赔偿在内的责任。《中华人民共和国消费者权益保护法》也规定:“消费者在接受服务时,其合法权益受到损害的,可以向服务者要求赔偿”。据此原告认为,被告在承担侵权赔偿责任的同时,还应当依照《中华人民共和国合同法》和消费者权益保护汉的规定,承担违约和侵害赔偿者权益的法律责任。请求判令被告向原告承认错误、赔礼道歉,给原告赔偿经济损失798860元(其中包括王翰被抢劫财物损失28300元,丧葬费用231793元,差旅、住宿费95967元,教育、抚养费442800元),赔偿精神损失费50万元。
Wang Liyi and Zhang submitted the following evidence: 原告提交了以下证据:
1. an invitation to conference sent by China Medicine (Group) Shanghai Company and a certificate issued by the new and special medicine department of this company, which could prove that Wang Han checked in at Galaxy, and she came to Shanghai on business to attend a fair; 1、中国医药(集团)上海公司发出的会议邀请书及该公司新特药业务部的证明,证明被害人王翰是因公出差来沪参加交流会时入住银河宾馆。
2. a notice for “Urgent Assistance of Investigation” issued by Changning Branch, Shanghai Municipal Public Security Bureau (hereinafter referred to as “Shanghai PSB”); an “Important Notice for Looking for A Person” announced by Shanghai PSB; the news on offering a reward in “Xinmin Evening News”; the “Necropsy Report” made by Shanghai PSB; conclusions of Changning Branch, Shanghai PSB, on Wang Han's being murdered and its opinions on the disposition of her remains, photos and materials printed by the public security authority for solving the case, all these could prove that Wang Han was murdered during her accommodation in Galaxy; 2、上海市公安局长宁区分局的《紧急协查》通知、上海市公安局《重要寻人启事》、《新民晚报》悬赏消息、上海市公安局《尸体检验报告》、上海市公安局长宁区分局关于王翰被害结论及遗体处理意见、公安机关为破案印刷的照片资料,证明王翰在入住银河宾馆期间被害。
3. Galaxy's open letter to its guests and the “Detailed Rules by Galaxy on Quality Promises”, which could prove the contents of Galaxy's promises; 3、被告给住店旅客的公开函、《银河宾馆质量承诺细则》,证明被告的承诺内容。
4. Shanghai Huating Group's “Hotel Management Modes” and Galaxy's “Operations for Internal Security Posts” and directions on “Operations for the Posts in Security Monitoring Center”, which could prove the duties of Galaxy's security employees on their posts; 4、上海华亭集团《饭店管理模式》及银河宾馆《内保岗位作业》、《安全监视中心岗位作业》指导书,证明被告的安全保卫人员岗位职责。
5. “Circular on Strengthening the Security Management of Tourism and Foreign-involved Hotels and Strictly Preventing the Occurrence of Vicious Cases” jointly issued by Ministry of Public Security and National Tourism Administration in 1993, which could prove that foreign-involved hotels had been required by relevant departments with repeated injunctions to strengthen their security management; 5、公安部、国家旅游局1993年颁布的《关于加强旅游涉外饭店安全管理严防恶性案件发生的通知》,证明有关部门三令五申要求加强涉外饭店安全管理。
6. “Detailed Rules of Shanghai Municipality on the Implementation of Public Security Management in the Tourism Industry” and “Regulations of Shanghai Municipality on the Public Security Management of Special Industries and Public Places”, which could prove that Shanghai Municipal Government had proclaimed in writing that hotels should establish the system of registration of accommodation and visit and implement the system of 24-hour shift inspections by certain persons; 6、《上海市旅游业治安管理实施细则》和《上海市特种行业和公共场所治安管理条例》,证明上海市政府明文规定旅馆应建立住宿、访客登记制度,应实行24小时值班制度,并要有专人巡查。
7. a list of economic losses and relevant documents. 7、经济损失清单和相关凭证。
Galaxy defended that: there was a contractual relationship between Wang Han and itself which gave priority to the lease of guestroom but supplement to corresponding services; none of the Hotel's management rules and systems was a contractual term; the promises on service quality made by the Hotel to its guests were only with regard to the lease of guest rooms and the services rendered. Galaxy did not breach the contract for it had fulfilled its obligations of leasing the guestroom and providing corresponding services. Galaxy was a prestigious foreign-involved hotel, and had all necessary and standardizing rules, systems and corresponding facilities, thus the criminal did not objectively have advantageous conditions to commit an offence. Wang Han's being murdered and robbed of her properties were caused and committed by the criminal, and did not have causality with Galaxy's management. Galaxy neither infringed upon Wang Han's rights, nor breached the contract. Therefore, Wang Liyi and Zhang's claims should be rejected. 被告辩称:被告与王翰之间存在着以租赁客房为主和提供相应服务为辅的合同关系;宾馆内部的各项管理规章制度关非该合同条款;宾馆对旅客所作的服务质量承诺,只是相对出租的客房和提供的服务而言。被告已按约履行了出租客房和提供相应服务的义务,并未违约。被告是有影响的涉外宾馆,内部有着必要的、规范的各项规章制度及相应设施,不存在对犯罪分子作案有利的客观条件。王翰遇害及其财物被劫,是犯罪分子所为,与被告的管理没有因果关系。被告对王翰既未侵权,也不违约,故应当驳回原告的诉讼请求。
Galaxy submitted the following evidence: 被告提交了以下证据:
1. security rules and systems for the Hotel's security department, inspectors, watchers, security management employees, security monitoring room, general reception desk, and attendants on the floors, as well as systems on visit list and visitor's registration, etc., which could prove that Galaxy had its standards for the hotel's security management; 1、宾馆保卫部、巡检员、监视员、治安管理人员、安全监视机房、总台、楼面服务员的安全规章制度,以及会客单、访客登记等制度,证明被告有宾馆安全管理规范。
2. “Opinions on the Check and Acceptance of Galaxy's Television Monitoring system” by Shanghai Municipal Construction Commission, the reply by Changning Branch, Shanghai PSB, on approving the extension and rebuilding proposal of Galaxy's security monitoring system, “Reply to the Application for the Extension and Rebuilding of Galaxy's Security Monitoring System” by Shanghai Huating (Group) Company, and the documents on completion of the extension and rebuilding of Galaxy's monitoring system, etc., which could prove that Galaxy's television security monitoring system conformed to the requirements of public security; 2、上海市建设委员会作出的《关于银河宾馆监视电视系统的验收意见》、上海市公安局长宁区分局关于同意银河宾馆安检系统扩改建方案的批文、上海市华亭(集团)公司《关于银河宾馆扩建改造安全监控系统请示的批复》、银河宾馆安检系统扩建改造竣工书等,证明被告的电视安全监控系统符合治安要求。
3. testimonies of Lu Jixin, Cao Xinggui, Jin Guozheng, He Weigong and Liu Feng, 27 display pictures on the television monitoring screen, etc., which could prove that the 4,860 minutes of video tape for the period of the incident recorded 1,200 person-times of passing in and out of the gate and 800 person-times of entering and leaving the lift, thus there was no circumstance that the Hotel was not being monitored or controlled. 3、陆纪新、曹兴贵、金国震、何为公、刘枫的证词以及27个电视监控屏幕的显示图等,证明发宁时间的4860分钟录像带里,记录了进出大门1200人次,进出客梯800人次,不存在失去监控的现象。
4. notes of inquisition of Lu Jixin, Hu Jianjie and Ye Qiong, which could prove that the security employees were clear about their duties on their posts, and that during the period when they were doing their inspecting duties on August 23, 1998, no abnormity occurred. 4、向陆纪新、胡剑杰、叶琼的调查笔录,证明保安人员明确自己的岗位责任,在1998年8月23日履行巡视职责期间,未发现异常现象。
5. “Measures on the Public Security Management of the Hotel Industry” promulgated by Ministry of Public Security, “Regulations of Shanghai Municipality on the Public Security Management of Special Industries and Public Places” and other provisions, which could prove that the registration system of visits was not a compulsory provision in laws or regulations; 5、公安部发布的《旅馆业治安管理办法》、《上海市特种行业和公共场所治安管理条例》等,证明宾馆访客登记制度并非法律、法规的强制性规定。
6. photos of the door of the guestroom, security instructions on the back of the door of the guestroom, and records of inspecting the scene made by Changning Branch, Shanghai PSB, , which could prove that the door facility of the guestroom was in good condition, however, the victim opened the door carelessly without using the security facility when the criminal pressed the door bell, thus causing the criminal to be able to thrust himself into the guestroom and commit the offence. 6、客房门照片、张贴于客房内的安全提示以及上海市公安局长宁区分局的现场勘查笔录等,证明宾馆的客房门设施完好,当犯罪分子按门铃时,被害人未使用安全装置随意开门,致使犯罪分子强行入室作案得逞。
After the witnesses had been questioned in the trial, Galaxy had no objections to the evidence submitted by Wang Liyi and Zhang except that the list of economic losses and relevant documents were lack of basis in respect of scope and calculation. Wang Liyi and Zhang held that the testimonies of Galaxy's employees could not be adopted, but they had no objections to the other evidence submitted by Galaxy. 经庭审质证,被告除认为原告提交的经济损失清单和相关凭证在范围与计算标准上缺乏依据外,对原告提交的其他证据无异议。原告认为被告提交其工作人员的证言不可采信,对被告提交的其他证据无异议。
It was verified by Changning Court: on August 23, 1998, Wang Han, daughter of Wang Liyi and Zhang, came to Shanghai to attend a medicine fair and checked in at Galaxy. At about 2:40 p.m., Wang Han was registered at the general reception desk of the Hotel, and was then led by an attendant to enter Room 1911. She was killed at about 4:40 p.m. in the room by Tong Ruibao, the criminal (who had been sentenced to death and whose death sentence had been executed) (hereinafter referred to as “Tong”), and was robbed of more than 23,000 Yuan, 20 HK Dollars and an “Omega” wristwatch worth 7,140 Yuan. It was found out afterwards that Tong entered the Hotel at 2:02 p.m. waiting for a chance to commit the offence. He pressed the doorbell of Room 1911 and thrust himself into the room as soon as Wang Han opened the door, and then killed her and robbed her of her properties. Tong left the Hotel at about 4:52 p.m.. During Tong's stay in the Hotel, Galaxy neither registered his visit nor noticed his whereabouts. 上海市长宁区人民法院经审查查明:1998年8月23日,原告王利毅、张丽霞之女王翰为参加药品交流会来沪,入住被告的银河宾馆。下午2时40分左右,王翰经宾馆服务总台登记后,由服务员领入1911客房,下午4时40分左右在该客房被犯罪分子仝瑞宝(已被判死刑并执行)杀害,随身携带的人民币2.3万余元、港币20元和价值人民币7140元的欧米茄牌手表一块被劫走。事后查明,仝瑞宝于当日下午2时零2分进入宾馆伺机作案,在按1911客房门铃待王翰开门后,即强行入室将其杀害并抢劫财物,下午4时52分离开宾馆。期间,银河宾馆未对其作访客登记,且对其行踪也未能引起注意。
Galaxy was a four-star foreign-related hotel, which had standardized management systems and has security monitoring and control facilities. The “Detailed Rules by Galaxy on Quality Promises” were put in each guestroom and came into force as of August 19, 1998. There were such contents as “24 hours of security inspection to guarantee your personal safety”, “if there is any inconformity with the above said promises, we will immediately improve it and apologize to you or give you fruits, or offer you a discount of charges or charges partly free , or pay you compensation.”in these rules. 被告银河宾馆是四星级涉外宾馆,内部有规范的管理制度,并安装着安全监控设施。银河宾馆制订的《银河宾馆质量承诺细则》置放于客房内,并于1998年8月19日起实施。该细则中有“24小时的保安巡视,确保您的人身安全”、“若有不符合上述承诺内容,我们将立即改进并向您赔礼道歉,或奉送水果、费用打折、部分免费,直至赔偿”等内容。
Wang Liyi and Zhang suffered from mental blow after their daughter was murdered. They came to Shanghai many a time to arrange for Wang Han's beravement and suffered some economic losses. During the trial, Galaxy had said that although it should not bear the compensation liability for Wang Han's being murdered, it was still willing to make up for some of the mental distress and economic losses caused to Wang Liyi and Zhang due to Wang Han's death. However, the conciliation failed, because Wang Liyi and Zhang refused to accept Galaxy's proposal. 原告王利毅、张丽霞在女儿王翰遇害后,精神受到打击,并为料理丧事多次来沪,经济受到一定损失。审理中,被告银河宾馆曾表示,尽管银河宾馆对王翰的遇害不负有赔偿责任,但考虑到王翰的遇害给王利毅、张丽霞造成精神上的痛苦和经济上的损失,愿意在经济上给予一定补偿。由于王利毅、张丽霞不能接受银河宾馆的这一意见,致调解不成。
PROCEDURAL POSTURE土豪我们做朋友好不好 
It was Changning Court's opinion: 上海市长宁区人民法院认为:
Although Wang Han was murdered and robbed of her properties during her accommodation in Galaxy, her death and her robbery were caused by Tong's inflicting acts, and Galaxy was not a co-inflicter. Galaxy's negligence in its management did not have legal causality with Wang Han's death and robbery of her properties. Therefore, there was no legal basis for Wang Liyi and Zhang to demand Galaxy to bear the compensation liability for tort by reason of its negligence in management, thus this claim should not be supported. 原告王利毅、张丽霞之女王翰虽在入住被告银河宾馆期间遇害致死,财物被劫,但王翰的死亡和财物被劫是犯罪仝瑞宝的加害行为所致,银河宾馆并非共同加害行为人。银河宾馆在管理工作中的过失,同王翰的死亡与财物被劫没有法律上的因果关系。故王利毅、张丽霞以银河宾馆在管理工作中有过失为由,要求银河宾馆承担侵权赔偿责任,没有法律依据,不予支持。
Article 85 of “General Principles of the Civil Law of the People's Republic of China” provides: “A contract shall be an agreement whereby the parties establish, change or terminate their civil relationship. Lawfully established contracts shall be protected by law.” When Wang Han checked in at Galaxy before her death, there had been a contractual legal relationship established between Galaxy and her, which should be governed by the contract law instead of the Law on the Protection of Consumer Rights and Interests. Paragraph 1, Article 106 of the General Principles of the Civil Law provides: “Citizens and legal persons who breach a contract or fail to fulfill other obligations shall bear civil liability.” Article 111 provides: “If a party fails to fulfill its contractual obligations or violates the term of a contract while fulfilling the obligations, the other party shall have the right to demand fulfillment or the taking of remedial measures and claim compensation for its losses.” Since Galaxy had made its promise of “24 hours of security inspection to guarantee your personal safety” in respect of its management and high quality of services to its guests, it should fulfill the promise, otherwise it should bear the breach liability. Concerning Wang Han's death and robbery of her properties were caused by Tong after all despite of Galaxy's fault of breach in providing its services, the amount of compensation for breach should be determined with reference to the actual circumstances of this case. Therefore, Changning Court rendered the following judgment: 中华人民共和国民法通则》第八十五条规定:“合同是当事人之间设立、变更、终止民事关系的协议。依法成立的合同,受法律保护。”王翰生前入住被告银河宾馆,其与银河宾馆之间建立的是合同法律关系,应适用合同法律进行调整,不能适用消费者权益保护法民法通则一百零六条法宝第一款规定:“公民、法人违反合同或者不履行其他义务的,应当承担民事责任。”第一百一十一条规定:“当事人一方不履行合同义务或者履行合同义务不符合约定条件的,另一方有权要求履行或者采取补救措施,并有权要求赔偿损失。”银河宾馆既然基于对宾馆的管理以及对入住宾馆客人的优质服务而作出“24小时的保安巡视,确保您的人身安全”的服务质量承诺,则应予以兑现,现未能兑现承诺,则应承担违约责任。考虑到银河宾馆在提供服务过程中虽有一定的违约过失,但王翰之死及财物被劫毕竟是罪犯仝瑞宝所为,故违约赔偿的数额应当参照本案的实际情况酌情而定。据此判决:
1. Galaxy should pay 80,000 Yuan of compensation to Wang Liyi and Zhang within 10 days as of the effective date of this judgment; 一、被告上海银河宾馆于本判决生效之日起10日内给付原告王利毅、张丽霞赔偿费人民币8万元。
2. other claims by Wang Liyi and Zhang should be rejected. 二、原告王利毅、张丽霞的其他诉讼请求不予准许。
The 23,325.80 Yuan of acceptance fee should be shared by the plaintiff (Wang Liyi and Zhang) and the defendant (Galaxy), with the former to bear 22,043.25 Yuan, and the latter 1,282.55 Yuan. 案件受理费人民币23325.80元,由原告王利毅、张丽霞负担22043.25元,被告银河宾馆负担1282.55元。
Neither party accepted the judgment in the first instance, and both filed appeals at the No. 1 Intermediate People's Court of Shanghai Municipality (hereinafter referred to as “the Intermediate Court”). 双方当事人不服一审判决,向上海市第一中级人民法院提起上诉。
Wang Liyi and Zhang's appeal reasons were as follows:
1. Galaxy neither registered Tong's visit nor carefully inquired about his abnormal acts, and didn't pay enough attention. Although Galaxy had complete monitoring and control facilities, they could not give the guests real protection. Galaxy's faults in its management had legal causality with Wang Han's death.
2. Galaxy was not whole-heartedly devoted to its duties, thus leaving alone Tong's offence, therefore, Galaxy had infringed upon the victim's rights by means of nonfeasance. That is to say, it was Galaxy's tort by nonfeasance and Tong's criminal acts that jointly caused Wang Han's death.
3. Galaxy's liabilities in this case were multiple. It had tort liability, breach liability, and the liability under the Law on the Protection of Consumer Rights and Interests. The tort liability and the contractual liability involved in this case were parallel, which should not be turned into no liability for the reason that they lied in two different aspects.
4. Wang Han's accommodation in the Hotel was a consuming act, which should be protected by the Law on the Protection of Consumer Rights and Interests. This case should be handled according to the principle of protecting the aggrieved party. Wang Liyi and Zhang requested the Intermediate Court to rescind the original judgment and support their claims in the first instance.
 王利毅、张丽霞的上诉理由是:一、银河宾馆对仝瑞宝未进行访客登记,对其反常行为未进行盘查,也没有给予充分注意。银河宾馆虽有完善的监控设施,却不能切实起至对旅客的保护作用。银河宾馆管理过程中的过错,与王翰之死有法律上的因果关系。二、银河宾馆没有恪尽职守,放任了仝瑞宝实施犯罪行为,故银河宾馆是以不作为的方式实施侵权。可以说,银河宾馆的不作为侵权与仝瑞宝的犯罪行为共同导致了王翰的死亡。三、银河宾馆在本案中的责任是多重的,既有侵权责任,也有违约责任和消费者权益保护法上的责任。本案涉及的侵权责任与合同责任是一种并列责任,不能因为两个角度都有责任,而演变为没有责任。四、王翰作为旅客住宿,是一种消费霆为,应当受到消费者权益保护法的保护,本案应当根据保护受害方的原则来处理。请求二审撤销原审判决,支持上述人在原审时的诉讼请求。
Galaxy's appeal claims are as the following:
1. In accordance with the Contract Law, a party should only have one single right of claim upon concurrence of liabilities. It was inconformity with the law for Wang Liyi and Zhang to request Galaxy to bear both the breach liability and the tort liability.
2. Wang Han was on her business to engage in commercial activities, and her accommodation in Galaxy should not be regarded as life consumption. Even if it was “life consumption”, it still did not conform to the two features under the Law on the Protection of Consumer Rights and Interests, namely, singularity of consumers' obligations and one-direction of operators' liabilities. Therefore, there was only a contractual relationship existing between Wang Han and Galaxy, and this case should not be governed by the Law on the Protection of Consumer Rights and Interests.
3. In the “Regulations of Shanghai Municipality on the Public Security Management of Special Industries and Public Places”, the original requirement of registration of visitors by a hotel was changed into management on visitors, which was the embodiment of market-orientation. Thus Galaxy did not violate the general rules in hotel industry for not registering Tong's visit, nor did it breach its contract with Wang Han. It could be seen from the information provided by Galaxy on the people passing in and out of it on the day when the incident occurred as well as the reflections of the 27 screens that it was indeed too difficult for Galaxy to notice Tong's trail due to the large number of people passing in and out of it. Wang Liyi and Zhang did not submit to the Court any evidence on Galaxy's failure to fulfill its obligation of notice as stipulated, in addition, they had actually acknowledged that Galaxy had indeed fulfilled its inspecting and monitoring obligations, provided that they regarded Galaxy's fulfillment as only in form. It was due to the limitation by objective conditions that Galaxy did not notice Tong's suspectable trail. Nonfeasance was that Galaxy had noticed Tong's abnormal acts, but it did not take any measures to stop him. Therefore, in the process of Galaxy's implementing the accommodation contract with Wang Han, neither the fact of breaching contract by not fulfilling the obligation of notice nor the circumstance of nonfeasance existed. There was no factual or legal basis for Galaxy to be ascertained in the first instance to have breach acts in the whole incident.
4. Wang Han's death was caused by Tong, and Tong's offence was the only reason leading to Wang Han's death. Even if Galaxy had its fault in breaching the contract, this fault was still not enough to cause Wang Han's death.
5. As Crimes were unpredictable, it was impossible for Galaxy to have the discretion to keep out of it any person who was about to commit an offence. This was exactly why Galaxy reminded guests to recognize a visitor through the peephole before opening the door, and why Galaxy meanwhile equipped its guestrooms with automatic door closers and security chains and other facilities. Wang Han opened the door without recognizing the visitor also provided a convenience for Tong to commit the offence. In short, Galaxy's acts did not have causality with Wang Han's death, thus it should not bear any liabilities.
6. Galaxy had no objections to compensating the plaintiffs 80,000 Yuan determined in the first instance, however, it had to be clarified that it was on the basis of humanitarianism due to its sympathy for Wang Han's death that Galaxy willingly made up for the losses of Wang Han's family with this amount.
 银河宾馆上诉称:一、根据合同法的规定,责任竞合时,当事人只有单一的请求权。王利毅、张丽霞请求让本宾馆同时承担违约和侵权责任,于法不符。二、王翰是因公出差从事商业活动,其住店不是生活消费;即便算“生活消费”,也不符合消费者权益保护法中消费者义务单一性和经营性责任单向性两个特征。因此,王翰与本宾馆之间只存在合同关系,对本案不应适用消费者权益保护法调整。三、《上海市特种行业和公共场所治安管理条例》已经将原来要求宾馆对访客进行登记改为进行访客管理,这是市场化的体现,因此本宾馆没有对仝瑞宝进行访客登记,不违反宾馆行业的一般规定,从而也不构成对王翰的违约。从本宾馆提供的案发当天进出人员以及27个屏幕反映的情况可以看出,由于出入宾馆的人员太多,宾馆确难注意仝瑞宝的形迹。王利毅、张丽霞不仅没有向法庭提交过本宾馆未按规定履行注意义务的证据,反而还承认本宾馆的确履行了巡逻、监视义务,只是认为此义务流于形式而已。本宾馆没有注意到仝瑞宝的可疑迹象,实乃客观条件所限。只有在本宾馆注意到仝瑞宝的异常举动后不采取行动,才是不作为。故本宾馆在履行与王翰的住宿合同过程中,不存在不履行注意义务的违约事实,也不存在不作为的情节。原审认定本宾馆在整个事件中有违约行为,没有事实根据和法律依据。四、王翰之死是仝瑞宝所为,仝瑞宝的犯罪行为是导致王翰死亡的惟一原因。本宾馆即使有违约过失,但此过失不足以造成王翰的死亡。五、刑事犯罪具有不可测性,宾馆不具有拒一切企图犯罪的人于宾馆之外的辨别力。因此宾馆提醒客人从门上探视镜中看清来访客人再开门,并同时配有自动闭门器、安全链条等设施。王翰未看清来者即开门,也为仝瑞宝犯罪提供了条件。总之,宾馆的行为与王翰之死没有必然困果关系,不应当承担责任。六、本宾馆对原审判决定宾馆承担8万元的款数没有异议,但必须明确这是本宾馆对王翰之死表示同情,出于人道主义自愿补偿给王翰家属的。
After trying the case, the Intermediate Court not only confirmed all the facts ascertained in the original judgment, but also verified that: Tong had gone up and down the lift for seven times within two hours when he was looking for an object of crime. Such a fact was disagreed by neither party. The Intermediate Court also verified that the door of Wang Han's room was equipped with a peephole, a security chain and an automatic door closer. Galaxy stated that there was an instruction of “recognizing a visitor through the peephole before opening the door” in the security notification on the back of the door of each guestroom. Wang Liyi and Zhang acknowledged that there was a security notification on the back of the door but they were not clear about whether the said instruction was included in it. This fact could be supported by both parties' statements on court. 上海市第一中级人民法院经审理,除确认了原审判决认定的全部事实,另查明:罪犯仝瑞宝在选择犯罪对象的两个小时内,曾7次上下银河宾馆的电梯。对此节事实,双方当事人均无异议。还查明,王翰所住的房间门上配有探视镜、安全链及自动闭门器。银河宾馆陈述,在客房门后张贴的安全告示中有要求旅客“看清门外访客再开门”的提示,王利毅、张丽霞认可门后有安全告示,但表示不清楚告示中是否有前述内容。此节事实,有双方当事人的庭审陈述为证。
JUDGMENT'S REASONING 
The Intermediate Court was of the following opinion: 上海市第一中级人民法院认为:
Wang Han's being murdered and robbed of her properties in the Hotel was a direct and inevitable result of Tong's offence. The criminal and civil tort liabilities caused from the criminal result should only be borne by Tong. Galaxy did neither have subjective joint intent with Tong in the offence, nor have objective implication of act. Galaxy's act was inappropriate to a certain extent, but it was still not inevitable to lead to Wang Han's death. Therefore, Galaxy and Tong were not joint tort-feasors, nor should Galaxy bear the civil liability for tort. It lacked legal basis for Wang Liyi and Zhang to demand Galaxy to bear the civil liability for tort. 王翰在宾馆内被害、财物被劫,是仝瑞宝犯罪的直接、必然结果。该犯罪结果所引起的刑事和民事侵权责任,只有仝瑞宝才应当承担。上诉人银河宾馆与仝瑞宝的犯罪行为既没有主观上的共同故意,又没有客观上的行为牵连。银河宾馆的行为虽有不当之处,但这些行为不会必然地导致王翰死亡。因此,银河宾馆与仝瑞宝不构成共同侵权,不应当承担侵权的民事责任。上诉人王利毅、张丽霞主张银河宾馆承担侵权民事责任,缺乏法律依据。
The Law on the Protection of Consumer Rights and Interests provides, where an operator causes any personal injury to a consumer in providing commodities or services, he shall pay compensation. This provision refers to the circumstance that the operator's commodity or service directly causes the consumer to suffer from damage. In this case, Wang Han's death was not directly caused by Galaxy's services, thus it did not belong to the circumstance prescribed in the Law on the Protection of Consumer Rights and Interests. It was contrary to the law for Wang Liyi and Zhang to propose the application of the Law on the Protection of Consumer Rights and Interests. 消费者权益保护法规定,经营者提供商品或者服务,造成消费者人身伤害的,应当赔偿。此规定是指经营者之商品或服务直接导致消费者受到损害的情形。本案王翰之死,并非由上诉人银河宾馆提供的服务直接造成,故不属于消费者权益保护法规定的情形。上诉人王利毅、张丽霞主张对本案适用消费者权益保护法调整,于法有悖。
As hotels are in the industry of service, they receive remuneration paid by guests by providing guests with accommodation environments and services corresponding to the charges. The relationship between a hotel and a guest shall be regarded as a contractual relationship, which is in conformity with Article 85 of the General Principles of Civil Law, therefore it shall be governed by contract laws. In this case, the incident occurred before the enforcement of “Contract Law of the People's Republic of China”, and there were no clarified provisions in laws on such kind of contractual dispute. While Article 1 of “Interpretations of the Supreme People's Court on Some Issues for the Application of the ‘Contract Law of the People's Republic of China' (I)” (No. 19 [1999] of Interpretations by the Supreme Court) provides: “Where a lawsuit is brought to the people's court over a dispute arising from a contract established after the enforcement of the Contract Law, the Contract Law shall be applied; where a lawsuit is brought to the people's court over a dispute arising from a contract established before the enforcement of the Contract Law, the legal provisions of the time shall be applied unless otherwise stipulated by these Interpretations, and relevant provisions in the Contract Law may be applied if there are no legal provisions of the time.” In accordance with this judicial interpretation, this case may be governed by the Contract Law. 宾馆作为服务性行为,以向旅客提供与收费相应的住宿环境和服务,来获取旅客付出的报酬。宾馆与旅客之间的关系符合民法通则北大法宝,版权所有八十五条的规定,是合同关系,应当适用合同法律规定来调整。本案发生在《中华人民共和国合同法》施行以前,当时的法律对此类合同纠纷缺乏明确规定。最高人民法院在《关于适用〈中华人民共和国合同法〉若干问题的解释(一)》(法释〔1999〕19号)的第一条规定:“合同法实施以后成立的合同发生纠纷起诉到人民法院的,适用合同法的规定;合同法实施以前成立的合同发生纠纷起诉到人民法院的,除本解释另有规定的以外,适用当时的法律规定,当时没有法律规定的,可以适用合同法的有关规定。”根据这一司法解释,对本案可以适用合同法调整。
Article 60 of the Contract Law provides: “The parties shall perform their obligations thoroughly according to the terms of the contract.” “The parties shall abide by the principle of good faith and perform the obligation of notice, assistance and maintaining confidentiality, etc. based on the character and purpose of the contract or the transaction practices.” While checking in at a hotel, no guest hopes to suffer from infringements upon his person or properties during his accommodation; and while receiving guests, no hotel is willing to see an incident of infringing upon a guest's person or properties so that the number of its guests will be impacted. Therefore, according to the character, purpose of the accommodation contract and the industrial practices, it is a subordinated obligation under such a contract to avoid infringements upon a guest's person and properties. Due to the differences in the level of charges, different hotels will also have different methods to perform their subordinated obligations under the contract. However, a hotel must earnestly adopt effective security prevention measures and carefully perform its obligation of notice most cautiously to prevent, in its power, the guests from being illegally infringed upon to the largest extent. Once an accommodation contract has been established, the subordinated obligations under it will simultaneously come into being and objectively exist no matter whether the hotel has issued to its guest an oral or written promise on security protection. In this case, Galaxy promised its guests “24 hours of security inspection to guarantee your personal safety”, this was to willingly upgrade the subordinated obligation to the main obligation under the contract. Therefore, it should be even more whole- heartedly devoted to its duties to perform such an obligation. 合同法六十条规定:“当事人应当按照约定全面履行自己的义务。”“当事人应当遵循诚实信用原则,根据合同的性质、目的和交易习惯履行通知、协助、保密等义务。”任何旅客入住宾馆时,都不会希望自己的人身、财产在入住期间受到侵害;任何宾馆在接待旅客时,也不愿意出现旅客的人身、财产被侵害事件,以至影响自己宾馆的客流量。因此,根据住宿合同的性质、目的和行业习惯,避免旅客人身、财产受到侵害,就成为此类合同的附随义务。按照收费标准的不同,各个宾馆履行俣同附随义务的方式也会有所不同,但必须是切实采取有效的安全防范措施,认真履行最谨慎之注意义务,在自己的能力所及范围内最大限度地保护旅客不受非法侵害。住宿合同一经成立,无论宾馆是否向旅客出具口头的或者书面的安全保护或承诺,合同的附随义务都随之产生并客观存在。本案中,上诉人银河宾馆向旅客承诺“24小时的保安巡视,确保您的人身安全”,是自愿将合同的附随义务上升为合同的主义务,更应当恪守职守履行这一义务。
Once Wang Han checked in at Galaxy, she had established a contractual relationship with Galaxy in respect of accommodation and services. In this contract, in addition to providing Wang Han with a room and relevant facilities and services corresponding to the charges at the level of a four-star hotel, Galaxy should perform the obligation of preventing Wang Han's person and properties from being illegally infringed upon. Although Wang Han was murdered by the criminal in the Hotel, it was still impossible for Galaxy to completely avoid the occurrence of such crimes in the Hotel even if it had carefully performed its obligation of preventing a guest's person and properties from being illegally infringed upon due to the suddenness and unpredictability of a crime as well as the diversification of the means of crime. Therefore, once such a criminal incident occurs, the hotel shall not be entirely regarded to have the liability on the basis of its assumption of the subordinated obligation of preventing a guest's person and properties from being illegally infringed upon. Specific circumstances shall be specifically analyzed. With regard to the harmful consequence caused by the crime, the criminal and civil liabilities shall be borne by the offender following the principle of bearing liability solely for one's own crime. The hotel does not have to bear the liability after it proved that it had indeed carefully performed the contractual obligation of preventing a guest's person and properties from being illegally infringed upon. 自王翰登记入住银河宾馆起,王翰就与上诉人银河宾馆形成了以住宿、服务为内容的合同关系。在此合同中,银河宾馆除应履行向王翰提供与其四星级收费标准相应的房间设施及服务的义务外,还应履行保护王翰人身、财产不受非法侵害的义务。王翰是在宾馆内被犯罪分子杀害的。由于刑事犯罪的突发性、不可预测性和犯罪手段的多样化,作为宾馆来说,尽管认真履行保护旅客人身、财产不受非法侵害的义务,也不可能完全避免此类犯罪事件在宾馆内发生。因此,一旦此类犯罪事件发生,不能以宾馆承担着保护旅客人身、财产不受非法侵害的合同附随义务,就一概认为宾馆负有责任,具体情况必须具体分析。对犯罪造成的危害结果,根据罪责自负的原则,必须由犯罪分子承担刑事和民事的法律责任。宾馆能证明自己确实认真履行了保护旅客人身、财产不受非法侵害的合同义务后,可以不承担责任。
As a four-star hotel, Galaxy had the conditions to separate the hall and other public activity areas from the accommodation area. According to the demand of market-orientation, it was unnecessary and impossible for the Hotel to carefully inquire about and register each person entering the hall and other public activity areas. However, for the sake of the safety of the guests' persons and properties, the Hotel had to and also had the conditions to pay full attention to the strangers entering the accommodation area, to know their movements through warm reception and inquiries, and to timely discover and stop the criminal attempts of some people, so as to protect the guests' safety. It was proved by the facts that Galaxy did not appoint employees to be in charge of this work, thus Tong did not meet with any of Galaxy's employees when entering and coming out of the accommodation area where Wang Han stayed, furthermore, he was not noticed or inquired about at all. Therefore, he could smoothly enter the guestroom to commit the offence, and then got away easily. As a result, Wang Han's body was not found until the next day. It was a great fault in the work of Galaxy to have failed to appoint its employees in the accommodation area to be in charge of reception. This left its guests in a very dangerous situation and was also the fundamental cause for Tong to choose Galaxy as the place to commit the offence. Although Galaxy had fixed television monitoring and control equipment at the entrance of the lift on each floor of the accommodation area, its employees still failed to watch out for Tong's abnormal movements when the monitoring and control equipment reflected that Tong went up and down the lift for seven times within the two hours waiting for the chance to commit the offence. It was proved by facts that, due to a large number of people passing in and out of the lift, this measure of Galaxy's did not work for protecting the safety of the guests' persons and properties. Galaxy failed to fully and carefully perform its contractual obligations, and should bear the breach liability. 上诉人银河宾馆作为四星级宾馆,已经具备了将宾馆大堂等公共活动区与旅客住宿区隔离的条件。为了适应市场化的要求,宾馆不需要也不可能对进入宾馆大堂等公共活动区的所有人员进行盘查、登记。但是为了住宿旅客的人身、财产安全,宾馆必须、也有条件对所有进入住宿区的不熟识人给予充分注意,在不乏热情的接待、询问中了解此类人员的动向,以及时发现并遏止其中一些人的犯罪企图,保护旅客的安全。事实证明,银河宾馆并没有配备专门人员负责此项工作,以至罪犯仝瑞宝出入王翰所在的住宿区时,均没有遇到过宾馆工作人员,更谈不上受到注意与询问,因而才能顺利进入客房作案,作案后又从容逃脱,王翰的尸体在第二天才被发现。银河宾馆不在旅客住宿区配备负责接待的工作人员,是其工作中的一大失误,这一失误已将旅客置于极不安全的境地,这也是仝瑞宝将银河宾馆选作犯罪地点的根本原因。银河宾馆虽然在住宿区每个楼层的电梯口都安装了电视监控设备,但是当监控设备已经反映出仝瑞宝为等待犯罪时机在不到两小时内7次上下宾馆电梯时,宾馆工作人员不能对这一异常举动给予密切注意。事实证明,由于出入电梯间的客流量较大,这一措施对及时保护旅客的人身、财产安全并不奏效。银河宾馆没有全面、认真地履行合同义务,自应承担违约责任。
Galaxy's guestrooms were equipped with such facilities as peepholes, security chains and automatic door closers, and notifications were posted up to remind the guests to recognize a visitor through the peephole before opening the door. As a four-star hotel, we should say that such security facilities were self-sufficient, but Galaxy should know, the guests are coming from far and near, and there are great differences among their languages, educational backgrounds, habits of life, and travel knowledge. Under such a circumstance, Galaxy should not think that it had fulfilled its obligations only by equipping the guestrooms with security facilities and using notifications to remind the guests of security knowledge, it must also carefully and conscientiously teach the guests about when and how to use these security facilities, until they had formed the habit of using such facilities. Otherwise, even the best security facilities would still exist in name only. It was not enough for Galaxy to have performed its obligations only in this respect, and the reason that “Wang Han did not follow the instructions to recognize a visitor through the peephole before opening the door, so that Tong could enter the room to commit the offence”, by which Galaxy denied its breach, was not tenable. 上诉人银河宾馆的客房装备着探视镜、自动闭门器和安全链条等设施,并以告示提醒旅客必须看清门外来客时再开门。作为四星级宾馆,这些安全设施应当说是比较完备的。但是银河宾馆应当知道,旅客来自四面八方,其语言、文化程度、生活习惯、旅行常识有很大差异。在此情况下,宾馆不能认为给客房装备了安全设施、并且用文字提示了安全常识,就是尽到了自己的义务,还必须认真、负责地教会旅客在什么情况下使用以及如何使用这些安全设施,直至旅客形成使用这些设施的习惯。否则,纵有再好的安全设施,也会形同虚设。银河宾馆在这方面所尽义务是不够的,其以“王翰没有按照提示的要求看清门外来客后再开门,以致仝瑞宝能够进入房间犯罪”为由否认自己违约,理由不能成立。
Paragraph 1, Article 113 of the Contract Law provides: “Where one party to a contract fails to perform the contract obligations or its performance fails to satisfy the terms of the contract and causes losses to the other party, the amount of compensation for losses shall be equal to the losses causes by the breach of contract, including the interests receivable after the performance of the contract, provided not exceeding the probable losses caused by the breach of contract which has been foreseen or ought to be foreseen when the party in breach concludes the contract.” Galaxy's performance of its obligations did not conform to the contractual terms, thus making Wang Han be in a dangerous situation, therefore, Galaxy should bear the breach liability. However, it should be pointed out that, Galaxy should only bear the compensation liability in accordance with the law to the extent of losses which could be foreseen when making the contract and which might be caused due to violation of the contract. The losses caused from Wang Han's being murdered and robbed of her properties had to be borne by Tong, the murderer. It should also be pointed out that, as a guest, it was Wang Han's subordinated obligation under the accommodation contract to pay attention at any time to protecting the safety of her own person and properties. Wang Han did not fully learn and make use of the security facilities provided by Galaxy, thus offered Tong the chance to commit the offence, therefore, she also had fault in the performance of her subordinated obligation under the contract. As a result, the amount of Galaxy's compensation for its breach might be reduced on the basis of the actual circumstance. 合同法一百一十三条第一款规定:“当事人一方不履行合同义务或者履行合同义务不符合约定,给对方造成损失的,损失赔偿额应当相当于因违约所造成的损失,包括合同履行后可以获得的利益,但不得超过违反合同一方订立合同时预见到或者应当预见到的因违反合同可能造成的损失。”上诉人银河宾馆履行义务不符合合同的约定,以至使旅客王翰陷入危险的环境,应当承担违约责任。但是应当指出,银河宾馆依法只对其在订立合同时应当预见到的因违反合同可能造成的损失承担赔偿责任。王翰被害及其财产被劫的损失,必须由杀害王翰的犯罪分子仝瑞宝承担。还应当指出,王翰作为旅客,时刻注意保护自己的人身、财产安全,也是她在订立住宿合同后应当履行的合同附随义务。王翰未能充分了解和利用宾馆提供的安全设施,以至给仝瑞宝的犯罪提供了条件,在履行合同附随义务中也有过失,因此可以酌减银河宾馆的违约赔偿数额。
The legal basis cited by Wang Liyi and Zhang in the first instance for claiming compensation was confusing and should not be completely applied. It was appropriate for Changning Court to determine this case as breach of contract and to settle the dispute by following the principle of favoring the obligee. Wang Han's death did cause great material and mental losses to Wang Liyi and Zhang, who therefore demanded Galaxy to pay the compensation of more than a million Yuan including 500,000 Yuan of mental losses. However, concerning these losses should be mainly borne by Tong, it was correct for Changning Court not to fully support Wang Liyi's and Zhang's claims. 上诉人王利毅、张丽霞在一审提起赔偿诉讼时,所引法律依据是混乱和不完全适用的。原审根据有利于权利人的原则,确定本案为合同违约并依法处理本案纠纷,是适当的。王翰被害,给王利毅、张丽霞造成极大的物质与精神损失,因此要求上诉人银河宾馆给付包括精神损失费50万元在内的百余万元赔款。鉴于这些损失主要应当由犯罪分子仝端宝承担,原审对王利毅、张丽霞的诉讼请求不予全部支持,是正确的。
JUDGMENT 
In short, in the first instance, the facts were clearly ascertained, the law was correctly applied, the judgment was appropriate and the trial procedures were lawful, thus the original judgment should be sustained. Therefore, the Intermediate Court rendered its judgment on January 17, 2001 in accordance with Item 1, Paragraph 1, Article 153 of “Civil Procedure Law of he People's Republic of China”: 综上所述,原审判决认定事实清楚,适用法律正确,判处恰当,审判程序合法,应予维持。据此,上海市第一中级人民法院依据《中华人民共和国民事诉讼法》第一百五十三第一款第一项的规定,于2001年1月17日判决:
The appeal should be rejected and the original judgment sustained. 驳回上诉,维持原回。
The 23,325.80 Yuan of acceptance fee in the second instance should be borne half by Wang Liyi and Zhang, and half by Galaxy.

 上诉案件受理费人民币23325.80元,由上诉人王利毅、张丽霞及上诉人上海银河宾馆各半负担。
 

     
     
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