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Welfare Lottery Issuance Center of Anhui Province v. Beijing Defali Technology Development Co., Ltd. (A case about disputes over a marketing agreement)
安徽省福利彩票发行中心与北京德法利科技发展有限责任公司营销协议纠纷案
【法宝引证码】

Welfare Lottery Issuance Center of Anhui Province v. Beijing Defali Technology Development Co., Ltd. (A case about disputes over a marketing agreement)
(A case about disputes over a marketing agreement)
安徽省福利彩票发行中心与北京德法利科技发展有限责任公司营销协议纠纷案

Welfare Lottery Issuance Center of Anhui Province v. Beijing Defali Technology Development Co., Ltd.
(A case about disputes over a marketing agreement)

 

安徽省福利彩票发行中心与北京德法利科技发展有限责任公司营销协议纠纷案

 [裁判摘要]

 一、根据最高人民法院《关于适用<中华人民共和国民事诉讼法>审判监督程序若干问题的解释》第三十三条的规定,人民法院应当在具体的再审请求范围内或在抗诉支持当事人请求的范围内审理再审案件。当事人超出原审范围增加、变更诉讼请求的,不属于再审审理范围。但涉及国家利益、社会公共利益,或者当事人在原审诉讼中已经依法要求增加、变更诉讼请求,原审未予审理且客观上不能形成其他诉讼的除外。

 

二、根据最高人民法院《关于适用<中华人民共和国合同法>若干问题的解释(一)》第四条的规定,合同法实施以后,人民法院确认合同无效,应当以全国人大及其常委会制定的法律和国务院制定的行政法规为依据,不得以地方性法规、行政规章为依据。

Supreme People's Court

 最高人民法院
Civil Judgment 民事判决书
No.61 (2008) Civil Retrial, Cert. (2008)民提字第61号
BASIC FACTS 
Retrial petitioner (defendant and counterclaim plaintiff in trial at first instance and appellant in trial at second instance): Beijing Defali Technology Development Co., Ltd., domiciled at: Suites 1501-1506. 申请再审人(一审被告、反诉原告,二审上诉人):北京德法利科技发展有限责任公司。
Legal Representative: Xu Dianlu, chairman of the board of directors of this company. 法定代表人:徐殿禄,该公司董事长。
Attorney: Liu Ying, lawyer of Yunnan Yundian Yangguang Law Firm. 委托代理人:刘英,云南云电阳光律师事务所律师。
Attorney: Lu Fameng, lawyer of Beijing Qinrunyuan Law Firm. 委托代理人:卢法孟,北京市沁润源律师事务所律师。
Respondent (plaintiff and counterclaim defendant in trial at first instance and appellee in trial at second instance): Welfare Lottery Issuance Center of Anhui Province, domiciled at: 209 Anqing Road, Hefei City, Anhui Province. 被申请人(一审原告、反诉被告,二审被上诉人):安徽省福利彩票发行中心。
Legal Representative: Li Yuping, director of the center. 法定代表人:李玉平,该中心主任。
Attorney: Liu Jianhua, lawyer of Anhui Xieli Law Firm. 委托代理人:刘建华,安徽协利律师事务所律师。
Attorney: Fan Guoping, lawyer of Anhui Xieli Law Firm. 委托代理人:范国平,安徽协利律师事务所律师。
PROCEDURAL POSTURE 
Beijing Defali Technology Development Co., Ltd. (hereinafter referred to as “Defali Company”) filed a retrial petition with this Court against a civil judgment (No.12 [2004] Civil II, Retrial, Anhui HPC) of the Higher People's Court of Anhui Province for disputes over a marketing agreement with the Welfare Lottery Issuance Center of Anhui Province (hereinafter referred to as “Anhui Lottery Center”). This Court made a civil ruling (No.20-2 [2006] Civil II, Supervisory) on October 16, 2008 to try this case itself. This Court legally formed a collegial panel comprising judge Liu Zhumei as the presiding judge and acting judges Yin Yuan and Zhang Xuemei to try this case. Court clerk Zhao Suijun kept a record of the trial. So far, the trial of this case has been concluded. 北京德法利科技发展有限责任公司 (以下简称德法利公司)为与安徽省福利彩票发行中心(以下简称安徽彩票中心)营销协议纠纷一案,不服安徽省高级人民法院 (2004)皖民二再终字第12号民事判决,向本院申请再审。本院于2008年10月16日作出(2006)民二监字第20-2号民事裁定,提审本案。本院依法组成由审判员刘竹梅担任审判长,代理审判员殷媛、张雪棵参加的合议庭进行了审理。书记员赵穗军担任记录。本案现已审理终结。
In August 2001, the Office of the Social Welfare Lottery Fundraising Committee of Anhui Province (hereinafter referred to as “Anhui Fundraising Office”) instituted an action in the Intermediate People's Court of Hefei City, Anhui Province, claiming that the Agreement for the Marketing Publicity of Anhui Welfare Lottery (hereinafter referred to as the “Marketing Publicity Agreement”) and the Supplementary Agreement for the Marketing Publicity of Anhui Welfare Lottery (hereinafter referred to as the “Supplementary Agreement”) signed by and between Anhui Lottery Center and Defali Company should be void because they went against the provisions of the Administrative Measures for Chinese Welfare Lottery and the No.13 [2000] Chinese Welfare Lottery Document, which provided that Chinese welfare lottery should be operated on a state monopoly basis and no external cooperation should be allowed in the issuance and marketing of lottery, and therefore harmed the public interests. Defali Company counterclaimed that the aforesaid agreements represented the true will of both parties. The cooperation between both parties in the marketing publicity of computerized lottery conformed to the spirit of the provisions of Article 19 of the Notice on Strengthening the Administration of Expanded Issuance of Welfare Lottery (No.105 [2001] Document of Ministry of Civil Affairs). The aforesaid agreements should be held valid, because they were not against any prohibitive provision of laws and administrative regulations. Therefore, Defali Company requested the court to confirm the validity of the Marketing Publicity Agreement and the Supplementary Agreement and determine that Anhui Lottery Center should continue to perform the two agreements and pay marketing publicity commissions of 7,273,174 yuan to Defali Company. 2001年8月,安徽省社会福利有奖募捐委员会办公室(以下简称安徽募办)向安徽省合肥市中级人民法院提起诉讼,以安徽彩票中心与德法利公司签订《关于安徽省福利彩票宣传营销的协议书》(以下简称《宣传营销协议书》)及《关于安徽省福利彩票宣传营销的补充协议》(以下简称《补充协议》)违反了《中国福利彩票管理办法》以及中福彩[2000]13号文关于中国福利彩票实行专营,发行和销售不得对外合作的规定,损害社会公共利益应认定无效为由,诉请判决《宣传营销协议书》及《补充协议》无效。德法利公司反诉称,上述协议系当事人真实意思表示。当事人在电脑票宣传营、销方面的合作符合民发[2001]105号《关于加强管理扩大发行福利彩票的通知》第十九条规定的精神。上述协议不违反法律、行政法规的禁止性规定,应认定有效。故请求确认《宣传营销协议书》及《补充协议》有效;安徽彩票中心继续履行协议;安徽彩票中心支付德法利公司宣传营销提成费 727.3174万元。
In the trial at first instance, the Intermediate People's Court of Hefei City, Anhui Province found that: On July 15, 2000, Anhui Lottery Center and Defali Company entered into the Marketing Publicity Agreement, According to this Agreement, Anhui Lottery Center should be the seller and sponsor of welfare lottery responsible for the overall work, while Defali Company should be responsible for assisting it in the marketing publicity. Anhui Lottery Center should reward or punish Defali Company according to the annual total sales amount: if the annual total sales amount was 100 million yuan or below, Anhui Lottery Center would impose a penalty which was 4% of the100 million yuan base upon Defali Company; if the annual total sales amount was above 100 million, 200 million or 300 million yuan, Defali Company would receive a marketing commission which was 1%, 2% or 3% of the amount; and the highest commission percentage should be 3%. Anhui Lottery Center should authorize Defali Company to set up a Marketing Publicity Department for Anhui Welfare Lottery Issuance Center and carry out work in this name across the province. Defali Company should bear all costs and expenses for the marketing publicity of the computerized welfare lottery. Before the debut of the computerized welfare lottery, Defali Company should remit 10 million yuan into a bank account designated by Anhui Lottery Center as special funds for marketing publicity purposes, and such funds should be controlled and used by Defali Company for such purposes. The term of the contract should be 10 years from October 1, 2000 to October 1, 2010. On November 13 of the same year, both parties also signed the Supplementary Agreement. According to it, Defali Company should input 3 million yuan every year as marketing publicity funds; any residual amount should be evenly distributed to both parties for use, and any deficit should be solved through consultations between both parties. The marketing publicity commissions to be paid by Anhui Lottery Center to Defali Company should be settled on a monthly or a quarterly basis, and the final settlement should be made at the end of every year; the commission percentage should not be affected by any increase or decrease of the issuance expenses by the relevant superior authority. If Defali Company breached the agreement or terminated the agreement unilaterally, it should bear all marketing publicity expenses and other relevant expenses already input in the early stage, indemnify Anhui Lottery Center for the marketing publicity expenses to be incurred during three years after the date of breach, and refund the marketing publicity commissions already received. If Anhui Lottery Center breached the agreement or terminated the agreement unilaterally, it should compensate Defali Company for all the marketing publicity expenses and other relevant expenses already input, indemnify Defali Company for the loss of marketing publicity commissions after the date of breach which should be otherwise paid at a percentage of the annual total sales amount, and pay Defali Company all marketing publicity commissions for three years after the date of breach. 安徽省合肥市中级人民法院一审查明:2000年7月15日,安徽彩票中心与德法利公司签订《宣传营销协议书》,约定,安徽彩票中心是福利彩票的承销者、主办者,负责整体工作。德法利公司负责协助其宣传营销方面的事务。安徽彩票中心依据每年的销售总额对德法利公司实行不同的奖惩:销售总额1亿元以下(含1亿元),安徽彩票中心按1亿元底数的4%对德法利公司进行惩罚;销售总额超过1亿、2亿、3亿元时,分别按总额的1%、2%、3%给德法利公司提取营销费;最高提成比例为3%。安徽彩票中心授权德法利公司成立“安徽省福利彩票发行中心宣传营销部”,并以此名义在全省范围内开展工作。德法利公司负责承担电脑福利彩票宣传营销工作的全部费用,在电脑福利彩票正式开通前,先汇人安徽彩票中心指定的银行账户1000万资金作为宣传营销专款,由德法利公司掌握使用。合同期限为10年,即自2000年10月1日至2010年10月1日。同年11月 13日,双方又签订《补充协议》,约定,德法利公司每年投入宣传营销费300万元,如有剩余,双方各支配50%,如有超支,协商解决。安徽彩票中心给德法利公司提取的宣传营销费用,每月或每季末结算一次,年终总结算;安徽彩票中心给德法利公司提取的宣传营销费用的比例,不受上级有关部门发行费用增加或降低的影响。德法利公司违约或擅自终止协议,负担前期已经投入的宣传营销及相关的全部费用,补偿安徽彩票中心从违约之日起后三年的宣传营销费用,退还已收取的宣传营销费;安徽彩票中心违约或擅自终止协议,赔偿德法利公司已经投入的宣传营销及相关的全部费用,补偿德法利公司从违约之日起按照每年销售总额原应提取的宣传营销费用,支付后三年的全部宣传营销费。
After the two agreements were signed, Defali Company set up a Marketing Publicity Department for Anhui Welfare Lottery Issuance Center as agreed on with the authorization of Anhui Lottery Center, prepared the publicity plans, concluded publicity contracts with relevant media, and conducted welfare lottery marketing activities. 合同签订后,德法利公司依据约定在安徽彩票中心的授权下成立“安徽省福利彩票发行中心宣传营销部”,制定宣传方案,与相关媒体签订宣传合同,开展了福利彩票的营销工作。
During the performance of the two agreements, as Anhui Fundraising Office and its superior authority raised an objection to the legality of the two agreements, Anhui Fundraising Office instituted an action. In the trial at first instance, after obtaining the consent of both parties, the Intermediate People's Court of Hefei City, Anhui Province engaged Anhui Hua An Accounting Firm to audit the expenditures of the Marketing Publicity Department for Anhui Welfare Lottery Issuance Center for the period from August 2000 through September 2001. According to the conclusion of the audit, this Department had incurred expenses in a total of 7,148,246.21 yuan accumulatively. Later, this Department incurred additional expenses of 131,011.11 yuan. 在合同履行期间,因安徽募办及其上级主管机关对合同合法性提出异议,安徽募办提起诉讼。一审期间,经双方同意,安徽省合肥市中级人民法院委托安徽华安会计师事务所对安徽省福利彩票发行中心宣传营销部2000年8月初至2001年9月末支出情况进行了审计,结论为:该经营部累计发生费用为7 148 246.21元。此后,该经营部又继续支出了费用131 011.11元。
The court of first instance also found that: Anhui Fundraising Office was a legally established public institution with approval. According to the spirit of relevant documents of the Ministry of Civil Affairs and the Department of Civil Affairs of Anhui Province, Anhui Lottery Center was established on the basis of Anhui Fundraising Office through restructuring in early 2000, so in fact, Anhui Lottery Center and Anhui Fundraising Office were “one institution with two name plates”. Selling welfare lottery was conducted in the name of Anhui Lottery Center, but by the end of the court trial at first instance, Anhui Lottery Center had not gone through the relevant institution registration procedures. 该院还查明:安徽募办系经依法批准设立的事业单位。根据民政部及安徽省民政厅的相关文件精神,2000年初在其基础上着手改制设立的安徽彩票中心,与其系“一个机构两个牌子”。销售福利彩票是以安徽彩票中心的名义进行,但截止到一审庭审结束时,该中心并未办理相关的登记手续。
The Intermediate People's Court of Hefei City, Anhui Province was of the opinion that: The Marketing Publicity Agreement and the Supplementary Agreement signed by both parties largely contained three parts: Defali Company should provide marketing publicity services for the issuance of Anhui welfare lottery; Defali Company should input marketing expenses of 3 million yuan every year; and Anhui Lottery Center should pay marketing commissions at a percentage of the annual total sales amount of welfare lottery to Defali Company. The marketing expenses input by Defali Company were of an investment nature. Defali Company should receive marketing commissions or pay a penalty according to the total sales amount of lottery and the agreed percentage, meaning that it may either gain profits or suffer a loss, which was beyond the scope of labor remunerations and of a for-profit nature. These clauses violated the relevant provisions of the state on use of lottery funds, enabling Defali Company to step into the issuance and sale of welfare lottery in a disguise form, and violated the relevant policies and regulations of the state, harming the public interests. Therefore, the Marketing Publicity Agreement and the Supplementary Agreement should be held void. According to the audit result, from August 2000 to September 2001, the accumulative total of expenditures incurred was 7,279,257.30 yuan, which should be paid by Anhui Fundraising Office. In its counterclaim, Defali Company required Anhui Fundraising Office to continue to perform the two agreements and pay the marketing publicity commissions thereunder, which should not be supported for lack of legal basis. The court of first instance rendered a judgment (No.153 [2001] Civil II, First Instance, Hefei) on April 25, 2003 as follows: The Marketing Publicity Agreement and the Supplementary Agreement should be void; Anhui Fundraising Office should refund to Defali Company the marketing publicity expenses already input of 7,279,257.30 yuan and the interest thereon for the period after October 1, 2001 (calculated at the bank lending rate over the same period until the date of payment); and the counterclaim of Defali Company should be dismissed. Of the case acceptance fee of the principal action, 60,110 yuan, the case acceptance fee of the counterclaim, 46,575 yuan, and the audit fee, 30,000 yuan, totaling 136,685 yuan, Anhui Fundraising Office should bear 56,685 yuan and Defali Company should bear 80,000 yuan. 安徽省合肥市中级人民法院一审认为:当事人签订的《宣传营销协议书》及《补充协议》主要包含三方面的内容:德法利公司为安徽福利彩票发行提供宣传营销服务;德法利公司每年投入300万元营销费用;安徽彩票中心每年在彩票销售总额中按比例给德法利公司提取营销费用。德法利公司投入的营销费用,具有投资性质。德法利公司按彩票销售总额及约定的比例提取营销费用或支付罚金,存在承担盈利和亏损的风险,也已超出劳动报酬的范畴,具有营利性质。这些约定违反了国家对彩票资金使用的有关规定,变相地造成德法利公司介入福利彩票发行销售,违反国家的有关政策法规的规定,损害了社会公共利益,因此,《宣传营销协议书》及《补充协议》应确认无效。德法利公司投入的宣传营销费用,经审计,2000年8月至2001年9月累计支出费用共计7 279 257.30元,应由安徽募办支付。但德法利公司反诉要求安徽募办继续履行协议,以及依协议给付宣传营销提成费用的诉讼请求于法无据,不予支持。该院于2003年4月25日作出 (2001)合民二初字第153号判决:确认《宣传营销协议书》及《补充协议》无效;安徽募办返还德法利公司投入的宣传营销费用7 279 257.30元及2001年10月1日后利息(按同期银行贷款利率计算到给付之日止);驳回德法利公司的反诉请求。本诉案件受理费60 110元,反诉案件受理费 46 575元,审计费30 000元,合计136 685元,由安徽募办承担56 685元,德法利公司承担80 000元。
Defali Company appealed to the Higher People's Court of Anhui Province against the judgment of first instance, asserting that: it was wrong for the court of first instance to hold that Defali Company illegally stepped into the field of issuance and sale of welfare lottery and the Marketing Publicity Agreement and the Supplementary Agreement were void. As Anhui Fundraising Office breached the contract unilaterally, it was impossible to continue to perform the agreement between both parties, and the appellant had to changed its claims into the following: (1) the judgment of first instance should be quashed; (2) the claims of Anhui Fundraising Office should be dismissed; (3) Anhui Fundraising Office should be ordered to compensate the appellant for the marketing publicity expenses already input in the amount of 7,279,257.30 yuan, pay the appellant the marketing publicity commissions in the amount of 7,273,174 yuan (calculated until September 2001 and compensate the appellant for its economic losses of 10 million yuan; and (4) Anhui Fundraising Office should bear all the court costs for the trial at first and second instances of this case as well as the audit fee. Anhui Fundraising Office pleaded that the judgment of first instance was clear in the fact finding and correct in the application of law, so it requested the court of second instance to dismiss the appeal and uphold the original judgment. 德法利公司不服一审判决,向安徽省高级人民法院提起上诉称:一审法院认定德法利公司违规介入福利彩票发行销售的经营领域,《宣传营销协议书》及《补充协议》无效错误。由于安徽募办单方毁约,双方的协议已无法再继续履行,故变更诉讼请求为:撤销一审判决;驳回安徽募办诉讼请求;判令安徽募办赔偿其投入的宣传营销费用7 279257.30元;支付其宣传营销提成费用7273174元 (计算至2001年9月);赔偿其经济损失 1000万元;安徽募办承担本案一审、二审全部诉讼费用和审计费用。安徽募办答辩称,一.审法院认定事实清楚,适用法律正确,请求驳回上诉,维持原判。
The facts found by the Higher People's Court of Anhui Province in the trial at second instance were consistent with the facts found in the trial at first instance. 安徽省高级人民法院二审查明的事实与一审查明的事实一致。
Through trial at second instance, the Higher People's Court of Anhui Province held that: The Marketing Publicity Agreement and the Supplementary Agreement represented the true will of both parties. Under the two agreements, Defali Company should provide marketing plans, advertisement and other publicity services for the issuance of welfare lottery, and Defali Company should neither participate in the sale of lottery nor participate in the capital settlement. Nothing in the two agreements violated any prohibitive provision of any law or administrative regulation. According to the agreements, the marketing publicity commissions paid to Defali Company were drawn from the issuance expenses, not affecting the percentages of prizes and the welfare fund in the total sales amount and therefore not harming the public interests. Accordingly, the Marketing Publicity Agreement and the Supplementary Agreement should be held valid. Anhui Lottery Center committed a breach of contract by terminating its performance of the two agreements unilaterally, so it should assume the default liability under the agreements. Since Anhui Lottery Center terminated its performance of the two agreements more than two years ago and the basis of performance of the agreements had greatly changed, the contract should be terminated. Because Defali Company's claims that the appellee should pay the marketing publicity expenses already input of 7,279,257.30 yuan and compensate it for its economic losses of 10 million yuan were not stated in its counterclaim in the trial at first instance, such claims fell outside the range of trial at second instance, and Defali Company may file a separate lawsuit for such claims. The court of second instance rendered a judgment (No.151 [2003] Civil II, Final, Anhui) on July 25, 2003 as follows: the judgment (No.153 [2001] Civil II, First, Hefei) should be quashed; the Marketing Publicity Agreement and the Supplementary Agreement should be legal and valid but should be terminated; Anhui Fundraising Office should pay marketing publicity commissions of 7,273,174 yuan (calculated to September 2001) to Defali Company within ten days after the effective date of this judgment; and the claims of Anhui Fundraising Office should be dismissed. The case acceptance fee for the trial of the principal action at first instance, 60,110 yuan, and the case acceptance fee for the trial of the counterclaim at first instance, 46,575 yuan, totaling 106,685 yuan, should be borne by Anhui Fundraising Office; of the audit fee of 30,000 yuan, Anhui Fundraising Office and Defali Company should each bear 15,000 yuan; and of the case acceptance fee for the trial at second instance, 106,685 yuan, Anhui Fundraising Office should bear 80,000 yuan, and Defali Company should bear 26,685 yuan. 安徽省高级人民法院二审认为:《宣传营销协议书》及《补充协议》是双方当事人真实意思表示。协议约定德法利公司为福利彩票发行提供营销策划、广告宣传等方面的服务,德法利公司既不参与销售,也不参与资金结算。上述协议内容未违反法律、行政法规的禁止性规定。从其内容看,德法利公司提取的宣传营销费是从发行费用中提取,不影响总额中彩民奖金和福利基金的比例,不存在损害社会公众利益的问题。因此,《宣传营销协议书》及《补充协议》有效。安徽彩票中心擅自终止合同的履行,构成违约,应依约定承担违约责任。由于安徽彩票中心违反约定终止履行义务已超过两年,履行协议的基础已发生重大变化,故合同应予终止。至于德法利公司请求对方支付其宣传营销费用7 279 257.30元及赔偿经济损失1000万元的诉讼请求,由于德法利公司未在一审反诉中提出,故不属于二审审理范围,德法利公司可另行起诉解决。该院于2003年7月25日作出(2003)皖民二终字第151号判决:撤销(2001)合民二初字第153号判决;确认《宣传营销协议书》及《补充协议》合法有效,终止履行;安徽募办于判决生效后十日内支付德法利公司宣传营销提成费用7 273 174元(计算至2001年9月);驳回安徽募办的诉讼请求。一审本诉案件受理费60 110元,反诉案件受理费46 575元,合计106 685元由安徽募办负担;审计费30 000元,由安徽募办与德法利公司各负担15 000元;二审案件受理费106 685元,由安徽募办负担 80 000元,德法利公司负担26 685元。
Anhui Fundraising Office petitioned the Higher People's Court of Anhui Province for a retrial against the above judgment of second instance in the name of Anhui Lottery Center, claiming that: the Marketing Publicity Agreement and the Supplementary Agreement should be held void. (1) The contents of these agreements violated the relevant provisions of the Ministry of Civil Affairs. Article 24 of the Administrative Measures for Chinese Welfare Lottery provided that “No external cooperation shall be allowed in the issuance, operation and management of welfare lottery.” The two agreements entered into by both parties violated this provision. Although the Notice on Strengthening the Administration of Expanded Issuance of Welfare Lottery (No.105 [2001] Document of Ministry of Civil Affairs) allowed the relevant companies to assist in the selling and allowed the relevant companies to cooperate in making marketing plans of computerized lottery, the Reply to the Request of the Department of Civil Affairs of Anhui Province for Instructions on Relevant Provisions on Welfare Lottery (No.158 [2001] General Office of Ministry of Affairs) pointed out that “Allowing the relevant companies to cooperate in making marketing plans for the sale of welfare lottery largely means the use of professional capabilities of relevant companies in marketing planning to provide services for the expanded issuance of computerized lottery. Such relevant companies may only participate in the form of cooperation, and provide market research, market consulting, marketing planning, advertisement, publicity and other professional planning services. They shall not enter the field of for-profit sale.” However, Defali Company conducted a range of lottery sales activities for profits pursuant to the agreements, including setting up a sales department, making sales plans and signing publicity contracts externally, all of which were beyond the scope of professional services and violated the spirit of the document above. (2) The two agreements injured the public interests. The No.158 [2001] document of the General Office of the Ministry of Civil Affairs stated that: remunerations for a professional company may only be drawn from issuance expenses, not at a percentage of the total sales amount of welfare lottery, because the total sales amount was made up of the welfare fund, prizes and issuance expenses and drawing commissions directly from the total sales amount of lottery would decrease the percentages of the three components against the objectives of issuing welfare lottery and the nature of welfare lottery and result in the company's disguised participation in the issuance and sale of welfare lottery against national policies. As Defali Company received commissions directly at a percentage of the total sales amount of lottery and directly participated in lottery settlement according to the agreements, which violated the above provisions and harmed the public interests, the petitioner requested the court to render a new judgment according to law. 安徽募办不服上述法院二审判决,以安徽彩票中心名义向安徽省高级人民法院申请再审称:《宣传营销协议书》和《补充协议》应认定无效。1.该协议内容违反民政部相关规定。《中国福利彩票管理办法》第二十四条规定,“福利彩票的发行和经营管理不得对外合作”。双方签订的合同违反了上述规定。虽然民发[2001]105号《关于加强管理扩大发行福利彩票的通知》规定允许有关公司参与协助销售,电脑彩票在营销策划等方面允许有关公司参与合作,但民政部办公厅[2001]158号《对安徽省民政厅关于福利彩票有关规定请求的复函》指出,“允许有关公司在电脑票销售时营销策划等方面参与合作,主要是利用有关专业公司在营销策划方面的专业能力为电脑彩票扩大发行规模提供服务。而且,有关专业公司仅仅是参与合作,提供市场调研、市场咨询、营销策划、广告宣传等方面的策划专业服务,不得进入经营销售领域。”而德法利公司根据协议约定组建销售机构、制定销售方案,对外签订宣传合同,就彩票经营销售进行了一系列活动,其行为已超出专业服务范畴,违反上述文件精神。2.该协议损害了社会公共利益。民政部办公厅 [2001]158号文件指出,专业性公司所获取的报酬只能从发行费中收取,不得从福利彩票销售总额中按比例收取,因为销售总额包括福利基金、资金和发行费三部分,直接从彩票销售总额中提成,减少上述三项资金的比例,与发行福利彩票的宗旨和福利彩票的性质相违背,变相地造成公司介入福利彩票的发行销售,违反国家政策规定。德法利公司依约直接从彩票销售总额中提成,直接参与彩票结算,违反上述规定,侵害社会公共利益,故请求依法改判。
Defali Company argued that: (1) The Marketing Publicity Agreement and the Supplementary Agreement were legal and valid contracts. (2) Defali Company only assisted Anhui Lottery Center in the marketing planning, advertisement and other publicity affairs before selling. Since it participated in neither selling nor fund settlement of lottery, it did not enter into the field of lottery sale. After signing the two agreements, Defali Company made publicity plans, spent a large sum of money and performed its obligations thereunder, for which Anhui Lottery Center should pay a consideration. The remunerations received by Defali Company were drawn from the issuance expenses and did not harm the public interests. Defali Company requested the court to dismiss the claims of Anhui Lottery Center in its retrial petition. 德法利公司答辩称:1.《宣传营销协议书》和《补充协议》符合法律规定,是有效合同。2.德法利公司仅是协助安徽彩票中心进行销售前的营销策划和广告宣传事务,既不参与彩票销售,也不参与资金结算,并未进入彩票经营销售领域。协议签订后,德法利公司制定了宣传方案,支出了巨额资金,履行了合同义务,安徽彩票中心应给予报酬。德法利公司收取的报酬系从发行费中提取,不损害社会公共利益。综上,请求驳回安徽彩票中心的申诉请求。
Through retrial, the Higher People's Court of Anhui Province held that: the issuance of welfare lottery was a non-profit undertaking for the public good. According to the relevant documents of the Ministry of Civil Affairs, welfare lottery should be exclusively operated by the state, and no entities and individuals may take part in the issuance and sale of welfare lottery. Professional companies may receive remunerations for their professional services such as marketing planning for the sale of computer lottery, but such remunerations may only be drawn from the issuance expenses, not at a percentage of the total sales amount of welfare lottery. As the total sales amount of welfare lottery included the prizes for lottery buyers, the welfare fund and the issuance expenses, drawing commissions directly from the total sales amount of lottery would decrease the percentages of the three components in the total sales amount, in violation of the relevant policies on the use of welfare lottery funds. According to the Marketing Publicity Agreement and the Supplementary Agreement, Defali Company should input marketing expenses of 3 million yuan every year and receive commissions at a certain percentage of the total sales amount of welfare lottery, which was beyond the normal range of service remunerations and of an investment nature. Moreover, Defali Company's marketing commissions were drawn at a certain percentage of the total sales amount of lottery, which was against the relevant policies of the state and detrimental to the public interests. After discussions by its judicial committee, the Higher People's Court of Anhui Province rendered the following civil judgment (No.12 [2004] Civil II, Retrial, Final, Anhui): the civil judgment of the Higher People's Court of Anhui Province (No.151 [2003] Civil II, Final, Anhui) should be quashed, and the civil judgment of the Intermediate People's Court of Hefei City (No.153 [2001] Civil II, First, Hefei) should be upheld. 安徽省高级人民法院再审认为,发行福利彩票为非盈利的社会公益事业。根据民政部发布的相关文件规定,福利彩票属国家专营,任何单位和个人不得介入福利彩票的发行和销售。有关专业公司通过为电脑彩票销售提供营销策划等方面的专业服务,可收取相应的服务报酬,但只能从发行费中收取,不得从福利彩票销售总额中按比例提取。因为福利彩票销售总额包括彩民奖金、福利基金和发行费,直接从彩票销售总额中提成,将减少上述三项资金的比例,违反福利彩票资金使用的有关政策规定。根据《宣传营销协议书》及《补充协议》的约定,德法利公司每年投入300万元营销费用,又从彩票销售总额中按比例提取费用,超出了收取服务报酬的正常范畴,具有投资收益的性质。并且,德法利公司从彩票销售总额中按比例提取营销费用,这些约定都违反国家政策规定,损害了社会公共利益。经该院审判委员会讨论,该院于 2004年8月19日作出安徽省高级人民法院(2004)皖民二再终字第12号民事判决:撤销安徽省高级人民法院(2003)皖民二终字第151号民事判决;维持合肥市中级人民法院(2001)合民二初字第153号民事判决。
BASIC FACTS 
Defali Company petitioned this Court for a retrial against the civil judgment (No.12 [2004] Civil II, Retrial, Final, Anhui) of the Higher People's Court of Anhui Province, claiming that: (1) It was contrary to the facts for the retrial judgment to confirm that Defali Company entered the field of lottery sale in a disguised form by directly drawing marketing commissions at a percentage of the total sales amount of lottery, which would decrease the percentages of the three types of funds in the total sales amount. (a) The services provided by Defali Company under the agreements were lawful and valid services in conformity with the laws and regulations of the state and the provisions of the Ministry of Civil Affairs. The Reply to the Request of the Department of Civil Affairs of Anhui Province for Instructions on Provisions on Welfare Lottery (No.158 [2001], General Office of the Ministry of Civil Affairs) pointed out that: the relevant companies should be allowed to cooperate in making marketing plans for the sale of computer lottery, but should never enter into the field of sale. In view of the contents of the agreements, Anhui Lottery Center was the only issuer of welfare lottery in Anhui Province. In performing the agreements, Defali Company conducted a series of lottery marketing and publicity activities completely within the scope stated in the above Reply, and never waded into the field of lottery sale. (b) The service remuneration received by Defali Company was calculated in the method as set forth in the agreements, and therefore was out of the true will of both parties to the agreements and consistent with the relevant legal provisions. The Supplementary Agreement provided that “Anhui Lottery Center shall pay marketing publicity commissions to Defali Company and make settlement on a monthly or a quarterly basis,” which also proved that the phrase “at a percentage of the total sales amount” was only about the calculating method for publicity commissions. As regards the trade practice, the Consignment Sale Agreement signed by Anhui Lottery Center with several thousand points of sale within the province also provided that “Consignment sale commissions shall be 7% of the total sales amount of welfare lottery.” It should not be determined according to this provision that several thousand points of consignment sale were deducting their consignment sale commissions directly from the total sales amount, that all of them were harming the public interests and that the Consignment Sale Agreement was void. (c) The service remunerations received by Defali Company pursuant to the agreements would not decrease the percentages of the three types of funds in the total sales amount of lottery. Firstly, the total sales amount of welfare lottery included the welfare fund, prizes and issuance expenses. According to the provisions of the Administrative Measures for Chinese Welfare Lottery and the Interim Administrative Measures for the Use of Social Welfare Funds, the actual controller and payer of the funds from the sale of welfare lottery should be Anhui Lottery Center and it was impossible for Defali Company to directly draw publicity or issuance expenses from the total sales amount of lottery. Secondly, the issuance expenses retained by Anhui Lottery Center at 15% of the total sales amount of lottery were at its disposal, and marketing publicity expenses were part of issuance expenses. According to the agreements, Anhui Lottery Center should pay publicity commissions to Defali Company at a rate of 1-3% of the total sales amount of lottery, lower than the issuance expenses. The Supplementary Agreement also provided that “the percentage at which Anhui Lottery Center draws marketing publicity commissions for Defali Company shall not be affected by any increase or decrease of the issuance expenses by the relevant superior authority,” which made it clear that the publicity expenses were actually settled monthly by Anhui Lottery Center with Defali Company from the issuance expenses. The publicity expenses acquired by Defali Company were paid by Anhui Lottery Center from the issuance expenses, and would not decrease the percentage of the three types of funds in the total sales amount of lottery. (2) No public interests were harmed in the conclusion and performance of the two agreements. On the contrary, thanks to the successful marketing publicity and huge capital input by Defali Company, the total sales amount of welfare lottery of Anhui Province had exploded, and the state acquired more funds for the welfare cause. The public interests had been maintained rather than harmed. The primary reason why Anhui Lottery Center denied the validity of the agreements was that: to reduce the impact of the drop of the percentage of issuance expenses from 20% to 15% on its interests, Anhui Lottery Center claimed invalidity of the agreements on the excuse of harm to public interests after failing to reach a consensus with Defali Company on lowering the percentage of publicity commissions. The cooperation between Anhui Lottery Center and Defali Company was completely in conformity with the spirit of the Notice on Strengthening the Administration of Expanded Issuance of Welfare Lottery (No.105 [2001] Document of Ministry of Civil Affairs), and Anhui Lottery Center had no evidence on the involvement of Defali Company in the field of lottery sale. Therefore, the agreements should not be held void. Meanwhile, according to the spirit of Article 3 of the Interpretation (I) of the Supreme People's Court of Several Issues on the Application of the Contract Law of the People's Republic of China (hereinafter referred to as the “Contract Law Interpretation (I)” ), which provided that: “When determining the validity of a contract entered into before the effective date of the Contract Law, a people's court shall apply the Contract Law to the contract if the contract is invalid under the then existing law but is valid under the Contract Law,” when a contract was valid under any new special provisions for the specific field of lottery issuance, undoubtedly, such new special provisions should be applied. So, the retrial judgment was wrong in the application of law. (3) As it was Anhui Lottery Center that breached the agreements and caused impossibility of performance thereof, Anhui Lottery Center should bear the relevant legal liabilities. For the above reasons, Defali Company requested this Court to quash the civil judgment (No.12 [2004] Civil II, Retrial, Final, Anhui) of the Higher People's Court of Anhui Province and uphold the civil judgment (No.151 [2003] Civil II, Final, Anhui) of the Higher People's Court of Anhui Province. 德法利公司不服安徽省高级人民法院(2004)皖民二再终字第12号民事判决,向本院申请再审称:一、再审判决认定德法利公司直接从彩票销售总额中按比例提取营销费用,减少彩票销售总额中三项资金的构成比例,变相介入销售领域,违背客观事实。1.德法利公司按照协议提供的服务符合国家法律法规和国家民政部的规定,是合法有效的服务。民政部办公厅[2001]158号《对安徽省民政厅关于福利彩票有关规定请求的复函》指出,允许有关公司在电脑票销售时营销策划等方面参与合作,不得进入经营销售领域。从协议的约定来看,安徽彩票中心是安徽省福利彩票唯一的发行主体。在协议的履行中,德法利公司举行一系列彩票营销宣传活动,完全是在上述复函所说的范围之中,而并未进入经营销售领域。2.德法利公司按照协议约定的服务报酬的计算方式获取服务报酬,符合双方签订协议的真实意愿,符合法律规定。从协议的体系来看,《补充协议》约定的“安徽彩票中心给德法利公司提取的宣传营销费用,每月或每季末结算一次,”这同样能够印证“按销售总额的比例”仅是对宣传费计算方法的约定。从交易习惯来看,安徽彩票中心与省内数千家销售点签订的《代销协议》也是同样约定“按福利彩票销售总额的 7.5%支付代销费。”不能据此认定数千家代销点都是直接从销售总额中扣除代销费,都损害了社会公共利益、协议无效。3.德法利公司按照协议约定提取的服务报酬不可能减少彩票销售总额中三项资金的构成比例。首先,福利彩票销售总额包括福利金、奖金和发行费。根据《中国福利彩票管理办法》和《社会福利基金使用管理暂行办法来自北大法宝》的规定,福利彩票销售资金的实际控制人和支付主体是安徽彩票中心,德法利公司不可能直接从彩票销售总额中直接提取宣传费发行费。其次,安徽彩票中心按照彩票销售总额的15%留存在本中心的发行费可自主支配,宣传营销的费用包含在发行费中。依据协议约定,安徽彩票中心按照销售总额为计算依据向德法利公司支付宣传费的比例为1%—3%,低于发行费。同时《补充协议》约定“安徽彩票中心给德法利公司提取的宣传营销费用的比例,不受上级有关部门发行费用增加或降低的影响”,这也明确了宣传费实际上是由安徽彩票中心按月从发行费向德法利公司结算。德法利公司获取的宣传费是安徽彩票中心从发行费中支付的费用,不可能减少彩票销售总额中三项资金的比例。二、双方在签订协议及履行过程中,没有损害社会公共利益。相反,正是由于德法利公司成功的宣传、营销及巨大的资金投人,才使安徽省的福利彩票销售总额成几倍增长,国家获取了更多的资金发展福利事业,维护了社会公共利益。安徽彩票中心否认协议有效性的根本原因是在发行费用由20%降至15%后,为减少对其利益影响,其在与德法利公司协商降低宣传费比例不成的情形下,遂以损害社会利益的理由主张合同无效。安徽彩票中心与德法利公司的合作完全符合民政部 2001年第105号《关于加强管理扩大发行福利彩票的通知》精神,安徽彩票中心没有任何证据证明德法利公司介入了销售领域,不应判决协议无效。同时,按照《最高人民法院关于适用<中华人民共和国合同法>若干问题的解释(一)》(以下简称《合同法司法解释(一)》)第三条关于“人民法院确认合同效力时,对合同法实施前成立的合同,适用当时的法律无效而适用合同法有效的,则适用合同法”规定的精神,在对特定的彩票发行领域有专项规定时,适用新规定合同有效则当然应适用新规定。因此,再审判决适用法律错误。三、因安徽彩票中心违约,导致协议无法继续履行,安徽彩票中心应当依法承担法律责任。故请求撤销安徽省高级人民法院(2004)皖民二再终字第12号民事判决;维持安徽省高级人民法院(2003)皖民二终字第151号民事判决。
During the court trial of this Court, Defali Company submitted a written request for changing its claims, considering that: as Anhui Lottery Center requested the court to hold the agreements void on the ground of harm to public interests and both the Intermediate People's Court of Hefei City, Anhui Province in the trial at first instance and the Higher People's Court of Anhui Province in the retrial held the agreements void on such a ground, public interests were involved in this case, which therefore met the provision of Article 33 of the Interpretation of the Supreme People's Court of Several Issues on the Application of the Trial Supervision Procedures in the Civil Procedural Law of the People's Republic of China (hereinafter referred to as the “Interpretation on Trial Supervision Procedures”) that “a party shall be allowed to change its claims in the retrial of a case, if any harm to the public interests is involved in the case.” So, Defali Company requested a change of items 2 and 3 in its counterclaim in the trial at first instance into the following: Anhui Lottery Center should be liable for breach of contract, compensate Defali Company for the marketing publicity expenses advanced by Defali Company, indemnify Defali Company for the loss of marketing publicity commissions which should be otherwise received by Defali Company during three years, and pay all marketing publicity commissions receivable by Defali Company in a total amount of 35,821,938.79 yuan. 在本院再审庭审期间,德法利公司提交变更诉讼请求申请书,认为,由于安徽彩票中心以损害社会公共利益为由,请求法院确认协议无效,安徽省合肥市中级人民法院一审和安徽省高级人民法院再审也以损害公共利益为由认定协议无效,故本案涉及社会公共利益,符合最高人民法院《关于适用<中华人民共和国民事诉讼法>审判监督程序若干问题的解释》(以下简称《审判监督程序的解释》第三十三条关于损害社会公共利益应允许当事人再审变更诉讼请求的规定,故申请变更一审反诉请求的第二、三项为请求判令安徽彩票中心承担违约责任,赔偿德法利公司垫付的宣传营销费用、补偿德法利公司三年应提取的宣传营销费用并支付德法利公司应提取的全部宣传营销费用共计35 821 938.79元。
The respondent, Anhui Lottery Center, pleaded that: (1) As lottery should be exclusively operated by the state, Defali Company violated the current regulations of the state by participating in the field where cooperation was prohibited. (a) Given the public good nature of welfare lottery, the issuance and sale of welfare lottery in China was under state monopoly, and no external cooperation was allowed in the issuance and sale of lottery, about which the relevant documents of the State Council contained clear provisions. (b) There was hard evidence on Defali Company's direct involvement in the sale of welfare lottery in the form of cooperation under the agreements between both parties, which violated the provisions of the state. Firstly, both the titles and the contents of the agreements clearly reflected the fact that Defali Company participated in the sale of welfare lottery. (i) The full name of the agreement involved in this case was Agreement for the Marketing Publicity of Anhui Welfare Lottery, which only contained the ‘marketing' without ‘planning'. (ii) The contents of the Marketing Publicity Agreement reflected more sufficiently the fact that Defali Company participated in the sale of welfare lottery. For example, Articles 1, 2.1, 3.1, 3.5, 3.6 and 3.8 of it clearly stated that Defali Company participated in marketing by implementing the marketing plans, assisting points of sales in marketing work, setting up a marketing chain gradually when conditions allowed and carrying out businesses related to instant lottery, video lottery, online lottery and other forms of welfare lottery. Secondly, the provisions of the contract were related to lottery sale, which violated the relevant documents of the State Council. When the two agreements involved in this case were concluded, there were then only four sets of regulations and rules concerning the administration of welfare lottery: the Notice of the State Council on Strengthening the Administration of Lottery Market, the Notice of the State Council on Further Strengthening the Administration of Lottery Market, the Urgent Notice of the People's Bank of China on Strengthening the Administration of Lottery Market and the Administrative Measures for Chinese Welfare Lottery, all of which expressly prohibited others from being involved in the sale of lottery and strictly limited the external cooperation on welfare lottery. According to the provisions of Articles 22, 23 and 24 of the Administrative Measures for Chinese Welfare Lottery, in 2000, any external cooperation on welfare lottery must meet the following conditions: (i) An approval must be obtained from China Welfare Lottery Issuance and Administration Center. (ii) Cooperation was limited to lottery printing, hardware production and software development only. No other forms of cooperation were allowed. In this case, the agreements concluded by both parties were neither approved by China Welfare Lottery Issuance and Administration Center nor limited to lottery printing, hardware production and software development, which evidently violated the above provisions. It was groundless for Defali Company to confirm the validity of the agreements by invoking the Notice on Strengthening the Administration of Expanded Issuance of Welfare Lottery (No.105 [2001 Ministry of Civil Affairs) which was issued more than one year after the agreements were concluded. Moreover, even if this No.105 document could serve as a basis, the provisions of the two agreements still contravened the state policies and rules. The Ministry of Civil Affairs allowed cooperation in marketing planning, not marketing. Cooperation in marketing was actually participation in sale as explicitly prohibited by the state. (iii) The profit model of Defali Company as agreed on in the agreements was typical return on investment, beyond the scope of service remunerations. What Defali Company did was investment in nature. (2) Defali Company drew income from the total sales amount of welfare lottery, which seriously harmed the public interests. In the contract, the only reference to issuance expenses was in item 9 of the clause about party B's rights and obligations, i.e. Defali Company should receive 3% of issuance expenses if preparing the formation of Lottery Salon. As one may see, when entering into the agreement, both parties made it clear that only when preparing the formation of Lottery Salon could Defali draw funds from the issuance expenses; otherwise, from the total sales amount. Article 3 of the Supplementary Agreement stated that “the percentage at which the marketing publicity expenses are drawn shall not be affected by any increase or decrease of the issuance expenses by the relevant superior authority,” meaning that such a percentage was irrelevant to the issuance expenses. By contract, Defali Company gave priority to its income over the three types of funds of welfare lottery, which surely harmed the public interests and violated the No.158 [2001] document that prohibited income drawn from the total sales amount of welfare lottery at a certain percentage. Therefore, it requested this Court to uphold the retrial judgment of the Higher People's Court of Anhui Province. 被申请人安徽彩票中心答辩称:一、国家对彩票事业实行专营,德法利公司参与国家禁止合作的领域,违反现行规定。1.基于福利彩票的公益性,我国福利彩票发行、销售实行专营,发行与经营不得对外合作。对此,国务院文件有明确规定。2.当事人之间订立的合同直接以合作方式介入经营证据确凿,违反国家规定。首先,无论是合同的名称还是合同的内容均明确反映出德法利公司参与福利彩票经营的事实。(1)涉案协议书的全名为《关于安徽省福利彩票宣传营销的协议书》,名称中仅有“营销”而无“策划”,涉及经营。(2)《宣传营销协议书》的内容更能充分反映德法利公司参与经营的客观事实,如第一条、第二条第1款、第三条第1、5、6、8款的内容表明,德法利公司参与营销工作的表现为:实施营销方案,协助各销售网点搞好营销工作,条件成熟时逐步建立连锁式营销网络,并从事与福利彩票相关的即开彩票、电视彩票及网络彩票的业务。其次,合同约定涉及经营,违反了国务院文件的规定。在签订本案所涉合同及其补充协议之时,对于福利彩票管理的规定仅有四份:《国务院关于加强彩票市场管理的通知》、《国务院关于进一步加强彩票市场管理的通知》、《中国人民银行关于加强彩票市场管理的紧急通知》和《中国福利彩票管理办法》。这四份文件均禁止他人涉及彩票经营,并且严格限制福利彩票的对外合作。根据《中国福利彩票管理办法》第二十二条、第二十三条、第二十四条我能说我还比较喜欢洗碗吗的规定,2000年福利彩票要对外合作,必须具备以下条件:1.经过中福彩中心的批准;2.合作仅限于彩票印制和硬件设备生产或软件技术开发。除此之外,不得有任何形式的对外合作。本案中,当事人订立的合同既没有经过中福彩中心的批准,又不是仅限于彩票印制和硬件设备生产或软件技术开发,明显违反上述规定,德法利公司引用合同订立后一年多才颁布的民发 [2001]105号《关于加强管理扩大发行福利彩票的通知》肯定合同效力,缺乏相应依据。再次,即便是依据该105号文件,合同中的约定仍然违反国家政策和制度的规定。民政部规定的是营销策划可以合作,并没有规定营销可以合作,对营销进行合作实际就是参与经营,是被国家明令禁止的行为。3.合同约定的德法利公司的赢利模式,系典型的投资收益,超过了收取服务报酬的范畴。德法利公司的行为实质上是一种投资行为。二、德法利公司从彩票销售总额中提取收益,严重损害社会公共利益。合同中唯一一次提到发行费是在合同中乙方责权利条款中的第9项,德法利公司筹建彩票沙龙的享有3%的发行费,由此可以看出当事人订立合同时,明确只有在彩票沙龙筹建时,才从发行费中提取,其他的都在销售总额中提取。《补充协议》第三条明确约定关于“提取宣传营销费用的比例,不受上级有关部门发行费用增加或降低的影响”的规定说明提取的比例与发行费没有关系。德法利公司通过合同将其收益凌驾于福利彩票各项资金之上,必然损害社会公共利益,违反了民办函[2001]158号文件关于不得从福利彩票销售总额中按比例提取的规定。综上,请求维持安徽省高级人民法院再审判决。
This Court confirms the facts found by the Higher People's Court of Anhui Province. 本院对安徽省高级人民法院查明的事实予以确认。
During the retrial by this Court, Defali Company submitted nine pieces of new evidence. Evidence1: Report of the Ministry of Finance and the Ministry of Civil Affairs on Checking the Relevant Problems with Hubei Welfare Lottery Issuance Center (No.74 [2007] Document of Ministry of Finance), which states that: “Paying service commissions at a certain percentage of the sales amount of lottery is a general practice in the world and also a way of settlement generally adopted by lottery institutions in China.” Therefore, as far as the cooperation project is concerned, the practice of Hubei Welfare Lottery Issuance Center conforms to the provisions of Article 8 of the Interim Administrative Provisions on Lottery Issuance and Sales that “lottery institutions may authorize outsiders to conduct computer system development, lottery printing and transport, lottery retail, advertisement, publicity planning and other businesses.” Evidence 2: Contract for the Sale of Computerized Welfare Lottery of Anhui Province (three copies). Article 3 of it states that Party A should pay 8% of the total sales amount of welfare lottery as consignment sale commissions to Party B. Evidence 3: Cooperation Agreement for “Chongqing Spirit” Computerized Welfare Lottery. Article 1.3 of it states that 7% of the total sales amount should be consignment sale commissions. Evidence 4: Agreement for the Consignment Sale of Computerized Chinese Welfare Lottery (three copies). Article 2.2.(7) of it states that service fees, marketing publicity expenses and other subsidies for computerized Chinese welfare lottery should be paid by Party A to Party B at 5% of the monthly sales amount. Evidence 5: Agreement for the Consignment Sale of Computerized Welfare Lottery at Betting Shops (two copies). Article 6.1 of it states that the consignment sale commissions to Party B should be drawn at 3% of the actual sales amount. Evidence 6: Agreement for Setting Betting Shops of Computerized Welfare Lottery. Article 2.2 of it states that the consignment sale commissions should be 8% of the total sales amount. Evidence 7: Agreement for the Sale of Computerized Sports Lottery of Liaoning Province (two copies). Article 1.8 of it states that Party A should draw the betting shop operating funds each month at 8% of Party B's actual sales amount in the previous month and such funds should be transferred into Party B's bank deposit account. Evidence 8: Agreement for Setting Betting Shops of China Sports Lottery in Shandong Province (two copies). Article 1.6 of it states that all lottery sales amount of Party B should belong to Party A and Party A should pay monthly commissions to Party B at 7% of the total sales amount of lottery. Evidence 9: Contract on the Consignment Sale of China Sports Lottery (two copies). Article 1.4 of it states that the issuance expenses refer to the sales cost and expenses paid by Party A to Party B at a certain percentage of the sales amount of Party B's point of sale. With the above evidence, Defali Company attempts to prove that: (1) Since 2000, in the sale of various kinds of lottery across China (including welfare lottery and sports lottery), the marketing commissions in whatever name have always been settled and paid by lottery institutions at a certain percentage of the total sales amount of lottery. (2) As far as this case is concerned, drawing expenses “at a certain percentage of the total sales amount” is only a calculating method for settlement. Although ‘drawing' is the word used in the expression, the lottery funds are managed by the Lottery Center with its original intention being that the Lottery Center makes settlement and payment in this method. (3) The marketing publicity expenses settled by a lottery institution and paid by it to a partner enterprise at a certain percentage of the sales amount of lottery are within the scope of issuance expenses and at the disposal of the lottery institution. In this case, the service fees paid by Anhui Lottery Center to Defali Company were much less than the lottery issuance expenses stipulated by the State Council (15% of lottery funds), so it is impossible for such service fees to decrease the percentages of the three types of funds in the lottery sales amount. (4) The marketing publicity expenses paid by Anhui Lottery Center to Defali Company at an agreed rate were necessary expenditures for the issuance and sale of lottery for the purpose of expanding the sales amount of lottery while accumulating the social welfare funds by relying on the market mechanisms, which would by no means harm the public interests. In the cross-examination of the retrial by this Court, Anhui Lottery Center raised no objection to the authenticity of the evidence above but maintained that it was normal for betting shops to draw income from the sales amount because they directly participated in the sale and that the above evidence failed the purposes of the opposite party. 本院再审期间,德法利公司提交了九份新证据。第一份新证据为财综[2007]74号《财政部 民政部关于湖北省福利彩票发行中心有关问题核查情况的报告》。该报告载明:“按彩票销量的一定比例支付服务费为国际通行做法,也是我国彩票机构普遍采取的结算方式。”因此,就合作项目而言,湖北福彩中心的做法符合《彩票发行与销售管理暂行规定》第八条关于“彩票机构可以对外委托电脑系统开发、彩票印制和运输、彩票零售、广告宣传策划等业务”的规定。第二份新证据为《安徽省电脑福利彩票销售合同书》(共三份)。该合同书第三条约定,甲方按照福利彩票销售总额的8%向乙方支付代销费。第三份新证据为《关于“重庆风采”电脑福利彩票的协作协议书》。《关于“重庆风采”电脑福利彩票的协作协议书》第一、3条载明,销售总额的7%作为代销费。第四份新证据为《电脑型中国福利彩票委托代销书》(共三份)。该代销书第二、 2、(7)条载明,电脑型中国福利彩票的劳务费用和营销宣传等补贴费用,由甲方按当月销量的5%向乙方支付。第五份新证据为《电脑福利彩票投注站委托销售协议书》 (共二份)。该协议书第六、1条载明,乙方代销费按实际销售额的3%计提。第六份新证据为《建立电脑福利彩票投注站协议书》。该协议书第二、2条规定,代销费用为销售总额的8%。第七份新证据为《辽宁省电脑体育彩票销售协议书》(共二份)。该协议书第一、8条规定,甲方每月按乙方上月实际销售额的8%提取投注站经费,转入乙方的银行储蓄账户。第八份新证据为《山东省设立中国体育彩票投注站协议书》(共二份)。该协议书第一、6条约定,乙方所有彩票销售款归甲方,甲方每月按彩票销售总额的7%向乙方支付佣金。第九份新证据为《关于代理销售中国体育彩票之合同书》 (共二份)。该合同书第一、4条约定,发行费:指甲方根据乙方网点销售额,按照一定比例支付给乙方的销售成本费用。根据以上证据,德法利公司证明以下几点:1.自 2000年以来,全国各地彩票(包括福利彩票和体育彩票)销售过程中,对于营销费用,无论采用何种名目,彩票机构均是按彩票销售额的一定比例结算支付。2.针对本案而言,“按销售总额”一定比例提取费用,只是一种结算的计算方法。虽然采用的是提取的表述,但彩票资金是由彩票中心管理,其本意是由彩票中心按此计算方法结算支付。3.彩票机构按彩票销量的一定比例结算支付合作企业的营销、宣传费用属于发行费的范围,可由彩票机构自主支配。本案中,福彩中心支付德法利公司的服务费远远低于国务院规定的彩票发行费比例 (彩票资金的15%),不可能减少彩票资金的三项分配比例。4.安徽福彩中心按约定比例支付德法利公司的营销宣传费用,属于彩票发行、销售的必然成本支出,其目的在于依靠市场机制扩大彩票销售量同时增进社会福利金的积累,根本不存在损害社会公共利益的情形。经本院再审质证,安徽彩票中心对上述证据的真实性不持异议,但认为,投注站直接参与销售,以销售额提取收益属正常,上述证据达不到对方当事人的证明目的。
During the retrial by this Court, Anhui Lottery Center submitted two pieces of new evidence. Evidence 1: Announcement on the Receipts and Disbursements of the Public Welfare Fund from Welfare Lottery of Anhui Province, which states that under the unified arrangements of the Ministry of Civil Affairs, Anhui Province has input 74,685,000 yuan public welfare fund at its disposal into 718 ‘Starlight Nursing Home' projects inside the province. Evidence 2: Report of the Department of Civil Affairs of Anhui Province on the Use of the Public Welfare Fund from Welfare Lottery. With the above evidence, Anhui Lottery Center attempts to prove that it owns and uses the public welfare fund. In the cross-examination of the retrial by this Court, Defali Company raised no objection to the authenticity of the evidence above but maintained that such evidence failed to prove that all the lottery funds were at the disposal of Anhui Lottery Center. 本院再审期间,安徽彩票中心提交了两份新证据。第一份新证据为《安徽省福利彩票公益金收支情况公告》。该公告载明,根据民政部统一部署,我省于近两年已安排省内掌握使用公益金7468.5万元投入到718个星光老年之家建设项目。第二份新证据为安徽省民政厅《关于福利彩票公益金使用情况的报告》。安徽彩票中心据此证明其是公益资金的支配、使用主体。经本院再审质证,德法利公司对上述证据的真实性不持异议,但认为,上述证据不能证明全部彩票资金均由安徽福彩中心支配使用。
This Court additionally finds in the retrial that: 本院再审另查明:
Article 2 the Marketing Publicity Agreement about the rights and obligations of Party A (Anhui Lottery Center) provides that: “(1) directing the marketing publicity work of Party B (Defali Company).” Article 3 of it about Party B's rights and obligations provides that “(1) bearing all expenses for the marketing publicity of computerized welfare lottery; … (5) implementing the marketing publicity plans already made for computerized welfare lottery; (6) assisting the points of sale in marketing and setting up a marketing chain gradually when conditions allow; … (8) carrying out businesses related to welfare lottery, such as instant lottery, video lottery, online lottery, etc.” 《宣传营销协议书》第二条甲方(安徽福彩中心)责权利条款中约定:“1、指导乙方(德法利公司)的宣传营销工作”。第三条“乙方的责权利”条款中规定:“1、承担电脑福利彩票宣传营销工作的全部费用;……… 5、实施已制定的电脑福利彩票的宣传营销方案;6、协助各销售网点搞好营销工作,并在条件成熟时逐步建立连锁式营销网络;……8、开展与福利彩票相关的业务,如即开彩票、电视彩票、网络彩票等。”
The schedule attached to the audit report of Anhui Hua An Accounting Firm on the expenditures of the Marketing Publicity Department for Anhui Welfare Lottery Issuance Center from August 2000 to September 2001 states: voucher number, cash payment 0955; date of expenditure: September 21, 2000; particulars: taxi fare for market distribution survey. 安徽华安会计师事务所对安徽省福利彩票发行中心宣传营销部2000年8月初至2001年9月末支出情况进行审计的审计报告书的附表中载明:凭证号,现付 0955;支出日期:2000.9.21;摘要:为考察市场布点情况出租车费。
The Notice on Forwarding the Four Documents of the Ministry of Civil Affairs Including Chinese Welfare Lottery (No.19 [95] Fundraising Committee, Anhui) issued on April 18, 1993 states that: “According to the provisions of the Ministry of Civil Affairs, the lottery fundraising offices at the provincial and prefecture levels shall be restructured when conditions allow in light of the characteristics of lottery operation and management. The provincial lottery fundraising office shall be restructured into ‘Welfare Lottery Issuance Center of Anhui Province'; … After restructuring, Anhui Fundraising Office shall be retained and have the functions of the local fundraising committee, i.e. one institution with two name plates.” The Reply on Consent to Renaming the Office of the Social Welfare Lottery Fundraising Committee of Anhui Province issued by Anhui Structural Setup Commission on November 30, 2001 states that: “Considering the consent of the provincial government to the cancellation of the Social Welfare Lottery Fundraising Committee of Anhui Province, it is agreed upon discussion that the Office of the Social Welfare Lottery Fundraising Committee of Anhui Province will be renamed to the Welfare Lottery Issuance Center of Anhui Province mainly responsible for organizing, issuing, selling and administrating the social welfare lottery in the whole province.” The Certificate of Legal Person as a Public Institution issued by the Public Institution Registration Administration of Anhui Province states that the Welfare Lottery Issuance Center of Anhui Province is a legal person as a public institution and that the certificate is valid from March 5, 2002 to March 31, 2003. On December 30, 2001, the Office of the Social Welfare Lottery Fundraising Committee of Anhui Province submitted to the Intermediate People's Court of Hefei City a Statement on Suing in the Name of ‘Office of the Social Welfare Lottery Fundraising Committee of Anhui Province', which states that: “The name ‘Welfare Lottery Issuance Center of Anhui Province' was put to use in the second half of 2000 according to the above document, but as the relevant registration formalities have not been gone through, it has not obtained the legal person status by the time of litigation. For this reason, although this Office, in the name of the ‘Center', entered into the Marketing Publicity Agreement with ‘Defali', the only legal entity when the action was brought was ‘the Office of the Social Welfare Lottery Fundraising Committee of Anhui Province'. ” In the cross-examination of the retrial by this Court, Defali Company raised no objection to the authenticity of the above evidence, and considered that the change of the plaintiff in this action was recognized by both parties and would affect the result of the substantive trial of this case. In the view of this Court, based on the facts above, a party to this litigation was changed, i.e. when the action was first filed, as Anhui Lottery Center had not obtained the legal person status by going through the registration formalities under the provisions of the relevant documents and Anhui Fundraising Office and Anhui Lottery Center were separate institutions with the same staff, the case was tried by the court of first instance with Anhui Fundraising Office as the plaintiff upon application by Anhui Fundraising Office. However, in a strict sense, before the judgment of first instance was rendered, Anhui Fundraising Office had been renamed to Anhui Lottery Center and Anhui Lottery Center had acquired the legal person status by receiving the legal person code certificate of a public institution. The court of first instance should have changed the litigation party to Anhui Lottery Center. Since in the trial at first instance of this case, Anhui Lottery Center and Anhui Fundraising Office did not submit any evidence on the name change, the court of first instance should not be blamed for the failure to change the litigation party. In the trial at second instance, they still did not submit any evidence on the name change, so Anhui Fundraising Office was still regarded as a litigation party in the trial of this case. During the retrial by the Higher People's Court of Anhui Province, as Anhui Fundraising Office had been replaced by Anhui Lottery Center, Anhui Lottery Center petitioned for the retrial, and the litigation party was legally changed into Anhui Lottery Center. To sum up, even if the trials at first and second instances of this case were flawed in terms of litigation party, such a flaw was caused by the failure of the parties concerned to submit timely evidence. Moreover, Anhui Fundraising Office and Anhui Lottery Center were separate institutions with the same staff, and Anhui Fundraising Office was later replaced by Anhui Lottery Center. The relationship between them was succession, and both parties concerned have raised no objection to the above litigation party and change thereof. Therefore, the above change of the litigation party would not affect the result of the substantive trial of this case. 1993年4月18日作出的皖募委字 [95]第19号《关于转发民政部<中国福利彩票>等四个文件的通知》载明:“根据民政部的规定,省、地两级要根据彩票经营管理的特殊性,有条件的,在募办的基础上进行改制。省改制为‘安徽省福利彩票发行中心';………改制后,募办继续保留,承担着当地募委的办事职能,实行一个机构,两块牌子。”2001年11月30日,安徽省机构编制委员会作出的《关于同意省社会福利有奖募捐委员会办公室更名的批复》载明:“鉴于省社会福利有奖募捐委员会经省政府同意撤销,经研究,同意安徽省社会福利有奖募捐委员会办公室更名为安徽省福利彩票发行中心。其主要职责是:负责全省社会福利彩票的组织、发行、销售和管理工作。”安徽省事业单位登记管理局办法的事业单位法人证书载明,安徽省福利彩票发行中心为事业单位法人,证书有效期为2002年3月5日至2003年3月31日。2001年12月30日,安徽省社会福利有奖募捐委员会办公室提交给合肥市中级人民法院的《关于以‘安徽省社会福利有奖募捐委员会办公室'作为原告的情况说明》载明:“‘安徽省彩票发行中心'在2000年下半年依上述文件挂牌使用,但有关注册手续没有办理,至诉讼时没有取得法人资格。鉴此,我办虽以‘中心'名义与‘德法利'签订了营销协议,但在起诉时合法主体只有‘安徽省社会福利有奖募捐委员会办公室'。”经本院再审质证,德法利公司对上述证据的真实性不存在异议,并认为,上述主体的变更当事人均予认可,不影响本案的实体审理结果。本院认为,基于上述事实,本案诉讼主体发生变更,即:在本案一审起诉之时,由于安徽彩票中心尚未依相关文件规定进行工商注册,取得法人资格,且安徽募办与安徽彩票中心为一套人马、两套机构,故一审依安徽募办的申请,以安徽募办为原告进行了审理。但严格分析,在一审判决作出前,安徽募办已更名为安徽彩票中心,安徽彩票中心也已取得了事业法人机构代码证,具有法人资格,一审法院本应将诉讼主体变更为安徽彩票中心,但由于在一审过程中,安徽彩票中心与安徽募办并未提交变更名称的证据,故一审法院未变更诉讼主体并非自身过错。二审过程中由于仍未提交相应更名证据,故仍以安徽募办为诉讼主体进行审理。在安徽省高级人民法院再审期间,由于安徽募办已被安徽彩票中心取代,故安徽彩票中心作为申请主体申请再审,诉讼主体也依法变更为安徽彩票中心。综上,尽管本案一、二审在主体的列明上具有瑕疵,但这系因当事人未及时提交证据所致,且由于安徽募办与安徽彩票中心本为一套人员、两套机构,安徽募办后又被安徽彩票中心取代,两者为主体承继关系,当事人对上述主体的列明和变更也不存在异议,故上述主体的变更并不影响本案的实体审理结果。
DISPUTED ISSUES 
In the opinion of this Court, there are two focal disputes over this case in the retrial as follows: 本院认为,本案再审争议焦点有以下两个方面:
1. Whether the request of Defali Company for changing its claims in the retrial should be supported. Article 33 of the Interpretation on Trial Supervision Procedures provides that: “A people's court shall retry a case within the scope of claims in the retrial petition or the scope of claims of the party supported by the appeal of the procuratorial organ as a trial supervisory organ. Where a party adds any claim to the claims in the original trial or changes any claim in the original trial, such additional claims or changed claims shall not fall within the scope of retrial, unless any national interest or public interest is involved or the original trial court has ignored a legal request of the party for adding or changing such claims in the original trial and in fact no separate action may be brought for such claims.” A final judgment has been rendered for this case after trial at two instances, so this Court should try it under the trial procedures for second instance. Defali Company filed a request for changing its claims in the original trial at second instance, but as Defali Company did not put forward the relevant claims in its counterclaim in the trial at first instance, the original court of second instance refused to grant such a request for reasons that the claims in such a request were not within the scope of trial at second instance and a separate action may be instituted for such claims. As a general rule, the scope of retrial by this Court should not go beyond the scope of the original trial. In this case, whether the request of Defali Company for changing its claims should be supported is only related to the individual interests of the company, does not involve the protection of public interests. Furthermore, Defali Company may institute a separate action for the changes in its claims to acquire right remedies. Therefore, the request of Defali Company for changing its claims should not be supported by this Court, for it does not fall under any of the circumstances of allowing changes to claims in retrial as set out in Article 33 of the Interpretation on Trial Supervision Procedures. 一、德法利公司再审变更诉讼请求能否得到支持。《审判监督程序的解释》第三十三条规定:“人民法院应当在具体的再审请求范围内或在抗诉支持当事人请求的范围内审理再审案件。当事人超出原审范围增加、变更诉讼请求的,不属于再审审理范围。但涉及国家利益、社会公共利益,或者当事人在原审诉讼中已经依法要求增加、变更诉讼请求,原审未予审理且客观上不能形成其他诉讼的除外。”本案系二审终审案件,因此,在再审审理过程中,应按照第二审程序审理。德法利公司虽在原二审审理过程中提出变更诉讼请求,但由于其未在一审反诉中提出,故原二审法院以其不属于二审审理范围,可另行起诉为由未予审理。本院再审审理范围原则上不应超出原审审理范围。本案中,对德法利公司变更诉讼请求是否予以支持的问题只涉及到该公司的个体利益,并不涉及社会公共利益的保护,而且,德法利公司可以就其拟变更的诉讼请求另行提起诉讼获得权利救济,故德法利公司变更诉讼请求并不符合《审判监督程序的解释》第三十三条关于再审可以变更诉讼请求的情形,对其变更诉讼请求的请求,本院不予支持。
2. Whether the Marketing Publicity Agreement and the Supplementary Agreement entered into by both parties are valid. The disputes between both parties are mainly in the following three, aspects: 二、当事人双方签订的《宣传营销协议书》、《补偿协议》是否有效。当事人争议主要集中在三个方面:
(1) , Whether Defali Company participated in the issuance and sale of lottery and the agreements should be void due to such participation. First, abo, ut the application of law, Article 4 of the Contract Law Interpretation (I) provides that after the Contract Law comes into force, when holding a contract void, a people's court should base it on laws made by the National People's Congress and its standing committee and administrative regulations made by the State Council and should not base it on local regulations and administrative rules. Accordingly, the determination of the validity of the agreements involved in this case should not be based on administrative rules. However, where laws and administrative regulations are silent, and the administrative rules made by the relevant administrative authority involve the protection of public interests, the provisions of such administrative rules may be applied mutatis mutandis, and if a contract violates any prohibitive provision of such rules about validity, the contract may be held void for violating Article 52 (4) of the Contract Law of the People's Republic of China on prohibition of harm to the public interests. Welfare lottery tickets are certificates carrying a winner's right to prize, which are issued for raising the social welfare development funds. With the tenet of ‘supporting the aged, helping the disabled, assisting the orphaned and relieving the poor', welfare lottery is issued to raise more funds for the social welfare and social security development, and is of a non-profit nature. In view of such a nature and purposes, the Ministry of Civil Affairs is the only governmental agency authorized by the State Council to issue Chinese welfare lottery throughout the country, and no other departments and local authorities are allowed to issue welfare lottery without authorization. Article 3 of the Notice of the State Council on Further Strengthening the Administration of Lottery Market (No.34 [1993] Document of State Council) states that: “No enterprises, public institutions or individual industrial and commercial households may issue or sell lottery or do so in a disguised form.” Article 24 of the Administrative Measures for Chinese Welfare Lottery (No.34 [1994] Document of General Office of Ministry of Civil Affairs) provides that: “no external cooperation is allowed in the issuance, operation and management of welfare lottery.” Later, to implement the requirements of “strengthening regulation, consolidating institutions, improving work performance, lowering issuance expenses, properly expanding issuance, raising the fundraising ratio, and using the fund income of new legal persons mainly to supplement the social security fund” of the 84th Premier's Executive Meeting of the State Council, the Ministry of Civil Affairs, with the consent of the State Council, issued the Notice on Strengthening the Administration of Expanded Issuance of Welfare Lottery (No.105 [2001] Document of Ministry of Civil Affairs), which provides that: “The relevant companies shall be allowed to cooperate in the marketing planning, technical service, equipment provision or maintenance of computerized lottery” and “For any discrepancy between former documents of the Ministry of Civil Affairs and this notice about welfare lottery, this notice shall prevail.” During the trial at first instance of this case, on September 4, 2001, the General Office of the Ministry of Civil Affairs issued the Reply to the Request of the Department of Civil Affairs of Anhui Province for Instructions on Relevant Provisions Concerning Welfare Lottery (No.158 [2001] Letter of General Office of Ministry of Civil Affairs), which explained the background of the Notice on Strengthening the Administration of Expanded Issuance of Welfare Lottery and pointed out that: “Allowing the relevant companies to cooperate in the marketing planning, etc. for the sale of welfare lottery is mainly for the purpose of using the professional capabilities of the relevant companies in marketing planning, etc. to provide services for expanding the issuance of computerized lottery. And the relevant professional companies may only cooperate by providing market research, market consulting, marketing planning, advertisement, publicity and other professional planning services, and shall not enter the field of lottery sale.” According to the authorization provision of the Notice of the State Council on Further Standardizing the Administration of Lottery Market (No.35 [2001] Document of State Council) that “The Ministry of Finance shall be responsible for drafting and formulating the regulations and policies of the state on lottery administration; administering the lottery market and supervising the issuance and sale of lottery,” on March 1, 2002, the Ministry of Finance issued the Interim Administrative Provisions for the of Issuance and Sale of Lottery (No.13 [2002] Document of Ministry of Finance). Article 8 of it provides that: “Lottery institutions may authorize outsiders to conduct computer system development, lottery printing and transport, lottery retail, advertisement, and publicity planning services.” The Marketing Publicity Agreement and the Supplementary Agreement involved in this case were signed in 2000 and their terms spanned the effective date of the Notice on Strengthening the Administration of Expanded Issuance of Welfare Lottery (No.105 [2001]), while the judgment of second instance was made on July 25, 2003. Under the basic principles for application of law, the validity of a contract should be generally determined according to the laws and regulations then in force; however, if before a final judgment is rendered, a contract is valid according to a law or administrative regulation recently enacted but void according to former laws and administrative regulations, under the basic legal theories on retrospective exception and durative act exception, the law or administrative regulation enacted recently should apply to the determination of the validity of the contract. If, based on the facts found, the contents of the Marketing Publicity Agreement and the Supplementary Agreement are only about a professional company's cooperation in market research, market consulting, marketing planning, advertisement, publicity and other professional planning services, without involvement in the field of lottery sale, the two agreements should be held valid under the laws and regulations enacted after the effective date of the agreements. If such cooperation is beyond the prescribed scope of cooperation, and Defali Company substantively entered into the issuance and sale of welfare lottery, the agreements should be hold void according to the above provisions. Second, about whether Defali Company substantively entered into the issuance and sale of welfare lottery, the word “marketing” in the title of the Marketing Publicity Agreement may be construed in two ways: participating in sale and assisting in the planning of marketing publicity. The scope of obligations of Defali Company as set out in the two agreements should include “making and implementing marketing plans, assisting points of sales in marketing work, setting up a marketing chain gradually when conditions allowed and engaging in instant, video lottery and online lottery business related to welfare lottery,” which may also be construed in two ways: participating in sale and assisting in the planning of marketing publicity. A proper construction of them should be based on an analysis of the purposes of the agreements, other clauses of the agreements and the nature of the alleged business activities of Defali Company. As stated in the recitals and Article 1 of the Marketing Publicity Agreement, Anhui Lottery Center employed Defali Company to assist in the marketing publicity work, and Anhui Lottery Center was the seller and sponsor of welfare lottery responsible for the overall work. Defali Company was responsible for assisting it in marketing publicity matters. As one may see, the seller of welfare lottery was Anhui Lottery Center, and Defali Company was only responsible for assisting Anhui Lottery Center in marketing publicity matters. During the hearing by this Court, except the evidence of taxi fare incurred by Defali Company for market distribution survey as listed in the schedule attached to the audit report of Anhui Hua An Accounting Firm, Anhui Lottery Center adduced no evidence on Defali Company's actual participation in the issuance and sale of lottery. And about this evidence, it may be construed that Defali Company assisted in the marketing planning and survey or Defali Company per se distributed the points of sale. Without corroborative evidence, it cannot be taken for granted that Defali Company substantively participated in lottery sale. Therefore, Anhui Lottery Center has no sufficient evidence on Defali Company's actual participation in lottery sale, and the Marketing Publicity Agreement and the Supplementary Agreement should not be held void for that reason. The retrial grounds of Defali Company about the validity of the agreements are correct, and should be supported by this Court. The determination of the Higher People's Court of Anhui Province in its retrial is improper and should be redressed. (一)德法利公司是否介入彩票的发行、销售领域,合同是否因之无效问题。第一,关于法律适用问题。《合同法解释(一)》第四条规定,合同法实施以后,人民法院确认合同无效,应当以全国人大及其常委会制定的法律和国务院制定的行政法规为依据,不得以地方性法规、行政规章为依据。因此,在本案合同效力的认定上,不应以行政规章的规定为认定依据。但在法律、行政法规没有规定,而相关行政主管部门制定的行政规章涉及到社会公共利益保护的情形下,可以参照适用其规定,若违反其效力性禁止性规定,可以以违反《中华人民共和国合同法》第五十二条第(四)项的规定,以损害社会公共利益为由确认合同无效。福利彩票是为筹集社会福利事业发展资金而发行的取得中奖权利的凭证。发行福利彩票的宗旨是“扶老、助残、救孤、济贫”,其目的是为社会福利事业和社会保障事业筹集更多资金,具有公益性。鉴于该性质和目的,民政部是国务院批准在全国发行中国福利彩票的唯一政府职能部门,其他任何部门和地方无权擅自发行福利彩票。因此,国发[1993]34号《国务院关于进一步加强彩票市场管理的通知》第三条规定:“企事业单位或者个体工商户一律不得发行、经营彩票或变相彩票”。民办发[1994]34号《中国福利彩票管理办法》第二十四条规定:“福利彩票的发行和经营管理不得对外合作”。之后,为贯彻落实国务院第84次总理办公会议提出的“加强监管、整顿机构、改进工作、降低发行费用,适度扩大发行,提高筹资比例,新增加法人资金收入主要用于补充社会保障基金”的要求,民政部报请国务院同意,经研究制定下发了民发 [2001]105号《关于加强管理扩大发行福利彩票的通知》。该通知规定:“电脑票在营销策划、技术服务、设备提供或维护等方面,允许有关公司参与合作。”该通知同时规定,“原有民政部关于福利彩票工作的文件中与此相冲突的以本通知为准。”在本案纠纷一审诉讼期间,2001年9月4日,民政部办公厅作出的民办函[2001]158号《对安徽省民政厅关于福利彩票有关规定请求的复函》对《关于加强管理扩大发行福利彩票的通知》的前述出台背景进行了说明,该复函同时指明:“本规定允许有关公司在电脑票销售时营销策划等方面参与合作,主要是利用有关专业公司在营销策划方面的专业能力为电脑彩票扩大发行规模提供服务。而且,有关专业公司仅仅是参与合作,提供市场调研、市场咨询、营销策划、广告宣传等方面的策划专业服务,不得进入经营销售领域。”根据国发[2001]35号《国务院关于进一步规范彩票市场管理的通知》关于“财政部负责起草、制定国家有关彩票管理的法规、政策;管理彩票市场,监督彩票的发行和销售活动”的授权规定,财政部2002年3月1日颁发的财综 [2002]13号《彩票发行与销售管理暂行规定》第八条规定:“彩票机构可以对外委托电脑系统开发、彩票印制和运输、彩票零售、广告宣传策划等业务。”本案诉争的《宣传营销协议书》和《补充协议》订立于2000年,履行期限跨越[2001]105号《关于加强管理扩大发行福利彩票的通知》生效之时,二审判决作出时间为2003年7月25日。根据法律适用的基本原则,原则上应适用行为之时的法律和行政法规的规定认定合同效力,但如果在终审判决作出之前,根据新颁布的法律、行政法规的规定认定合同有效而根据原有法律、行政法规认定无效的,根据从宽例外、持续性行为例外的基本法理,应适用新颁布的法律、行政法规的规定认定合同效力。如果根据查明的事实,《宣传营销协议书》和《补充协议》约定的内容仅是属于前述规定允许的专业公司在市场调研、市场咨询、营销策划、广告宣传等方面的策划专业服务中参与合作,而未进入经营销售领域的,则应适用前述协议颁布之后的法律、行政法规的规定,认定上述协议有效;如果合作超出了前述规定的合作范围,导致德法利实质介入福利彩票的发行和销售,则也根据前述规定认定上述协议无效。第二,德法利公司是否实质介入福利彩票的发行和销售。关于《宣传营销协议书》名称中营销两字的理解,有参与销售和协助进行营销宣传策划两种。关于合同中约定的德法利公司的义务范围中的制定、实施营销方案,协助各销售网点搞好营销工作,条件成熟时逐步建立连锁式营销网络,并从事与福利彩票相关的即开彩票、电视彩票及网络彩票的业务的理解,也有参与销售和协助进行营销宣传策划两种。究竟应作何理解,应结合合同目的、合同中其他条款以及德法利公司实质从事的法律行为的性质进行分析。根据该协议书引言和第一条的表述,安徽福彩中心聘请德法利公司协助进行宣传营销工作,安徽彩票中心是福利彩票的承销者、主办者,负责整体工作。德法利公司负责协助其宣传营销方面的事务。由此可见,福利彩票的承销者是安徽彩票中心,德法利公司只负责协助其宣传营销方面的事务。在本院再审庭审过程中,除安徽华安会计师事务所作出的审计报告书附表中载明的一笔德法利公司为考察市场布点情况所付出租车费的证据外,安徽彩票中心并无其他证据证明德法利公司在实际的工作中参与了彩票的发行和销售。而该证据既可以理解为是协助营销策划、考察网点,也可以理解为德法利公司亲自进行布点营销,从事销售行为,在无其他证据佐证的情形下,不能当然理解为其证明德法利公司实质参与了销售活动。因此,安徽彩票中心并无充分证据证明德法利公司实际参与销售活动,《宣传营销协议书》及其《补充协议》不应因此认定无效。德法利公司关于协议有效的再审理由成立,本院予以支持,安徽省高级人民法院的再审认定不当,应予纠正。
(2) Whether the commissions at 3% of the total sales amount as agreed on by both parties changed the percentages of the three types of funds in the sales revenue of welfare lottery and thus harmed the public interests. Article 18 of the Administrative Measures for Chinese Welfare Lottery provides that: “The total sales amount of welfare lottery shall be the lottery funds, which are divided into prizes, management funds and social welfare funds. Prizes shall not be less than 50% of the lottery funds, management funds shall not be more than 20% of the lottery funds, and social welfare funds shall not be less than 30% of the lottery funds.” The No.13 [2004] document of China Welfare Lottery Issuance and Management Center provides that the lottery fund minus prizes and social welfare funds equals issuance income and issuance income shall be used for paying cost and operating expenses of computerized lottery. Paragraph 4(12) of the Notice on Strengthening the Administration of Expanded Issuance of Welfare Lottery (No.105 [2001] Document of Ministry of Civil Affairs) provides that: “According to the decision of the State Council, from 2001, the distribution proportion of lottery funds will be adjusted as follows: prizes not less than 50%, welfare funds not less than 35%, and issuance expenses not higher than 15%.” According to the Reply to the Request of the Department of Civil Affairs of Anhui Province for Instructions on Relevant Provisions Concerning Welfare Lottery (No.158 [2001] Letter of General Office of Ministry of Civil Affairs) issued by the Ministry of Civil Affairs, remunerations payable to professional companies may only be drawn from issuance expenses and shall not be drawn from the total sales amount of welfare lottery at a certain rate, because the total sales amount comprises welfare funds, prizes and issuance expenses and drawing remunerations directly from the total sales amount of lottery will decrease the percentages of these three components against the purposes and nature of the issuance of welfare lottery and cause the companies' participation in the issuance and sale of lottery in a way against the relevant provisions. In this case, the remunerations received by Defali Company were obviously derived from its assistance to Anhui Lottery Center in sales publicity and planning and were within the scope of issuance expenses. The Supplementary Agreement provides that “The percentage at which the marketing publicity commissions are drawn shall not be affected by any increase or decrease of the issuance expenses by the relevant superior authority,” from which it may be inferred that the total sales amount of lottery is only a basis for calculating the marketing publicity commissions payable to Defali Company and the marketing commissions should be drawn from the issuance expenses in the total sales amount at the agreed rate. The percentage of issuance expenses in welfare lottery funds was 20% in 2000 and was adjusted to 15% in 2001. The upper limit of commission rate as agreed on between both parties was 3% of the total sales amount, which accounted for only a part of the total issuance expenses and did not affect the percentages of other two components of lottery funds, without any harm to the public interests. Additionally, the Report of the Ministry of Finance and the Ministry of Civil Affairs on Checking the Relevant Problems with Hubei Welfare Lottery Issuance Center (No.74 [2007] Document of Ministry of Finance) also states that paying service commissions at a certain percentage of the sales amount of lottery is a practice generally accepted in the world and a way of settlement widely adopted by lottery institutions in China. In short, Defali Company's marketing commissions drawn from the total sales amount of lottery as agreed on by both parties should be construed as commissions drawn from the issuance expenses. Such commissions were within the purposes of such expenses, would not affect the percentages of other components of the total sales amount of lottery, and would not cause any harm to the public interests. Therefore, the arguments of Anhui Lottery Center that such a clause changed the percentages of the three types of funds in the sales amount of lottery and harmed the public interests are baseless and should not be supported by this Court. (二)当事人双方约定提成费为销售总额的3%,是否属于变更福利彩票销售资金各费用比例,损害社会公共利益的行为。《中国福利彩票管理办法》第十八条规定:“福利彩票销售总额为彩票资金。彩票资金分解为奖金、管理资金、社会福利基金。其中奖金不得低于彩票资金的50%,管理资金不得高于彩票资金的20%,社会福利资金不得低于彩票资金的30%”。中国福利彩票发行中心中彩字[2000]13号文件规定,彩票资金扣除奖金和社会福利基金后为发行收入。发行收入用于支付电脑彩票的成本支出和经营费用。民发[2001]105号《关于加强管理扩大发行福利彩票的通知》第四(十二)部分规定:“根据国务院决定,从2001年起,彩票资金分割比例调整为:奖金不低于50%,福利金不低于35%,发行费用不高于15%”。根据民政部民办函 [2001]158号《对安徽省民政厅关于福利彩票有关规定请示的复函》的规定,专业性公司所获取的报酬只得从发行费中提取,不得从福利彩票销售总额中按比例提取,是因为销售总额包括福利金、奖金和发行费三部分,直接从彩票销售总额中提成,减少了上述三项资金的比例,与福利彩票发行的宗旨和性质相违背,变相地造成了公司介入福利彩票的发行销售,违反规定。本案中,德法利公司所获得的报酬显然是其协助安徽彩票中心进行销售宣传、策划而得的报酬,因此,其应属于发行费用的范畴。从《补充协议》关于“宣传营销提成费用的比例不受上级有关部门发行费用增加或降低的影响”约定的文义也可以推出,彩票销售总额只是计算德法利公司宣传营销提成费用的依据,营销提成费用应按约定比例从销售总额用途中的发行费用中提取。发行费在福利彩票资金分配比例中,在 2000年前占彩票销售总额20%,2001年做出调整后该比例变更为15%。当事人双方约定的提成比例的上限为销售总额的3%,该比例仅占全部发行费用的一部分,并未影响到其他两部分资金的提取比例,不会损害社会公共利益。再者,财综[2007]74号《财政部、民政部关于湖北省福利彩票发行中心有关问题核查情况的报告》也载明,按彩票销量的一定比例支付服务费为国际通行做法,也是我国彩票机构普遍采取的结算方式。综上,德法利公司从销售总额的发行费用中提取相关营销提成费用的约定应解释为其从发行费中提取相应的提成费用,符合该费用的使用目的,并未影响到福利彩票销售资金中其他两类资金的比例,不存在损害社会公共利益的情形,故安徽彩票中心关于该约定变更福利彩票销售资金各费用比例,损害了社会公共利益的答辩理由不能成立,本院不予支持。
(3) Whether the agreed commissions were too high, were against the nature of labor remuneration and affected the validity of the two agreements. According to the Marketing Publicity Agreement and the Supplementary Agreement, Defali Company should input marketing publicity expenses and provide relevant publicity planning services every year, so it should be entitled to labor remunerations. Of course, such remunerations should be corresponding to the input, and proper adjustment should be made if there is a substantial gap between input and income. The aforementioned Report of the Ministry of Finance and the Ministry of Civil Affairs on Checking the Relevant Problems with Hubei Welfare Lottery Issuance Center (No.74 [2007] Document of Ministry of Finance) also states that without foresight and predictability at the time of entering into the agreement, Hubei Lottery Center underestimated the rapid development of the lottery market, resulting in the unreasonable high return acquired by General Lottery Technology Company, which should be rectified. In this case, if continued performance is possible, whether the labor remunerations can be fully drawn at the rate agreed should be judged under the principle of fairness by measuring the amounts of input and income. However, as Anhui Lottery Center has not performed the agreements for more than two years, it is impossible for both parties to continue to perform the agreements, and the agreements should be rescinded. So, the proper labor remunerations of Defali Company should be determined by considering whether there is a substantial gap between the expenses already input and the remunerations claimed by Defali Company and whether the fairness principle is violated. According to the conclusion of the audit report, from August 2000 to September 2001, the Marketing Publicity Department for Anhui Welfare Lottery Issuance Center incurred expenses in an accumulative total of 7,148,246.21 yuan, and later incurred additional 131,011.11 yuan. Now Defali Company claims marketing publicity commissions of 7,273,174 yuan (calculated to September 2001). It may be determined that the commissions claimed are fair and reasonable because there is no great disparity between them and the expenses. (三)提成费用的约定是否过高,是否有违劳动报酬的本质,是否影响合同效力问题。依据《宣传营销协议书》和《补充协议》的约定,德法利公司每年投人宣传营销费用和付出相关劳动进行宣传策划工作,故有权获得相应劳动报酬。当然,该报酬应与投入相应,在投入和收入明显悬殊的情形下,应予适当调整。前述财综[2007]74号《财政部、民政部关于湖北省福利彩票发行中心有关问题核查情况的报告》也载明,湖北福彩中心在签订协议时缺乏前瞻性和预见性,低估了彩票市场的快速发展,导致穗彩公司可能获利较多的不合理因素,应当进行整改。因此,如果本案存在继续履行的可能性,在合同依约履行的情形下,能否完全按照合同的约定提取比例计算之后的劳动报酬,需考量投入和收人的数额,以公平原则进行衡量。但就本案而言,由于安徽彩票中心已不履行合同达两年多时间,合同已不存在继续履行的可能性,应予解除。因此,应根据德法利公司已投入的费用和其要求给付的报酬之间是否相差悬殊,是否有违公平原则进行确定。根据审计报告所做结论,2000年8月初至2001年9月末,安徽省福利彩票发行中心宣传营销部累计发生费用为7 148 246.21元。此后,该经营部又继续支出了费用131 011.11元。现德法利公司要求给付其宣传营销提成费用7 273 174元(计算至2001年9月),应认定其支出与诉请要求给付的费用相差并不悬殊,公平合理。
JUDGMENT 
In conclusion, the Marketing Publicity Agreement and the Supplementary Agreement should be held valid, because they represented the true will of both parties and were not against any prohibitive provision of laws and administrative regulations on the validity of a contract. As Anhui Lottery Center unilaterally terminated the performance of the two agreements, which was a fundamental breach of contract, the two agreements should be rescinded. Defali Company filed a counterclaim in the trial at first instance, requiring Anhui Fundraising Office to continue to perform the agreements and pay marketing publicity commissions to it under the agreements. Defali Company changed its claims in the retrial by this Court, but since the changed claims are beyond the scope of the original trial and do not fall under the special circumstances admissible in a retrial, its request for changing its claims should not be supported by this Court, but may be solved in a separate case. The judgment of second instance of the Higher People's Court of Anhui Province was clear in fact finding and correct in the application of law, and should be upheld by this Court. The retrial judgment of the Higher People's Court of Anhui Province was wrong in the application of law and should be redressed. In accordance with the provisions of Articles 153.1.(2) and 186 of the Civil Procedural Law of the People's Republic of China, this Court hereby renders a judgment as follows: 综上,《宣传营销协议书》及《补充协议》是双方当事人真实意思表示,不违反法律、行政法规的效力性禁止性规定,应认定有效。安徽彩票中心单方终止合同的履行,已构成根本违约,合同应予解除。德法利公司在一审提起反诉,请求安徽募办继续履行协议,以及依协议给付宣传营销提成费用。其虽在本院再审期间变更诉讼请求,但由于该变更的诉讼请求超出了原审审理范围,且不属于应作为再审审理范围的特殊情形,故对其再审变更的请求,本院不予支持,其可另案解决。安徽省高级人民法院二审判决认定事实清楚,适用法律准确,应予维持。安徽省高级人民法院的再审判决适用法律错误,应予纠正。本院依据《中华人民共和国民事诉讼法》第一百五十三条第一款第(二)项、第一百八十六条之规定,判决如下:
1. The civil judgment of the Higher People's Court of Anhui Province (No.12 [2004] Civil II, Retrial, Final, Anhui) shall be quashed; and 一、撤销安徽省高级人民法院(2004)皖民二再终字第12号民事判决;
2. The civil judgment of the Higher People's Court of Anhui Province (No.151 [2003] Civil II, Final, Anhui) shall be upheld. 二、维持安徽省高级人民法院(2003)皖民二终字第151号民事判决。
The obligation of payment therein shall be performed within ten days after the service of this judgment. Overdue payment shall be subject to the provisions of Article 229 of the Civil Procedural Law of the People's Republic of China. 上述给付义务,限自本判决送达之日起十日内履行。逾期给付,则按照《中华人民共和国民事诉讼法》第二百二十九条的规定处理。
This judgment shall be final. 本判决为终审判决。
Presiding judge: Liu Zhumei 审 判 长 刘竹梅
Acting judge: Yin Yuan 代理审判员 殷 媛
Acting judge: Zhang Xuemei 代理审判员 张雪楳
May 25, 2009 二OO九年五月二十五日
Court clerk: Zhao Suijun

 书 记 员 赵穗军
 

     
     
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