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| Second Group of Model Cases regarding Guaranteeing People's Livelihood Issued by the Supreme People's Court | | 最高人民法院公布保障民生第二批典型案例 |
| (March 19, 2014) | | （2014年3月19日） |
| I. Wang Shurong v. He Fuyun, Wang Xisheng, et al. for Rural Land Contracting Dispute | | 一、王淑荣与何福云、王喜胜等农村土地承包经营权纠纷案 |
| Basic Facts | | 基本案情 |
| On October 30, 2007, the Rural Land Contracting Arbitral Commission of Taobei District, Baicheng City, Jilin Province rendered a ruling that Wang Shurong was entitled to the contractual management of the land that was cultivated by Wang Zhenxue. Wang Zhenxue, Plaintiff in the first instance, requested the People's Court of Taobei District to confirm that: (1) the contract on land contractual management entered into between the Villagers' Committee of Sanyue Village and Wang Zhenxue was valid; and (2) Wang Shurong was not entitled to the contractual management of the land that was contracted by Wang Zhenxue. Wang Shurong argued that she had one fifth of the right to the contractual management of the land that was contracted by Wang Zhenxue. Wang Shurong was married on January 25, 1975. Since her husband was a serviceman, her permanent residence was still registered under Wang Zhenxue's household. In 1982, when Sanyue Village contracted out land, Wang Shurong and Wang Zhenxue were family members in the same household. The five family members contracted 5.4 mu of land, 1.08 mu per person and the head of the contract household was Wang Zhenxue. In January 1992, Wang Shurong relocated her permanent residence to Baicheng City and obtained a non-agricultural hukou. In the second round of land contracting in 1997, the household of Wang Zhenxue undertook 4.82 mu of land and obtained the Rural Land Contractual Management Certificate in 2005. Wang Shurong was not recorded as a co-owner. | | 2007年10月30日，吉林省白城市洮北区农村土地承包仲裁委员会作出裁决：王淑荣对王振学所种土地享有承包经营权。一审原告王振学遂向洮北区人民法院请求：1、确认三跃村村委会与王振学签订的土地承包经营合同有效；2、确认王淑荣对王振学承包的土地无承包经营权。王淑荣答辩称其在王振学承包的土地中享有五分之一的承包经营权。王淑荣1975年1月25日结婚，由于其丈夫是军人，故户口仍在王振学家。1982年，三跃村发包土地时，王淑荣与王振学一家系同一家庭成员，5口人承包5.4亩地，人均1.08亩，承包户户主为王振学。王淑荣的户口于1992年1月迁入白城市并转为非农业户口。1997年第二轮土地承包时，王振学家承包4.82亩土地，并于2005年取得《农村土地承包经营权证》，共有人没有记载王淑荣。 |
| Wang Zhenxue died in October 2010 and the respondent was altered from Wang Zhenxue to He Fuyun (wife of Wang Zhenxue) and Wang Xidong and Wang Xisheng (sons of Wang Zhenxue). | | 王振学于2010年10月死亡，被申请人由王振学变更为其妻何福云、其子王喜东、王喜胜。 |
| The court of first instance rendered a judgment that: (1) the land contract entered into between Wang Zhenxue and the Villagers' Committee was legally valid; and (2) Wang Shurong was not entitled to the contractual management of 1.08 mu of land that was contracted by Wang Zhenxue. The court of second instance, the Intermediate People's Court of Baicheng City rendered a judgment that Wang Shurong's appeal should be dismissed and the original judgment should be sustained. After retrial, the Intermediate People's Court of Baicheng City rendered a judgment that: (1) the judgment of second instance and item (2) of the judgment of first instance should be revoked; and (2) item (1) of the judgment of first instance should be sustained. In December 2009, the High People's Court of Jilin Province rendered a ruling to dismiss the application of Wang Shurong for retrial. In June 2012, after the case was tried directly by the High People's Court of Jilin Province, the court rendered a judgment that: (1) the judgments of both first instance and second instance and the original civil judgment on retrial should be revoked; and (2) the claims of Wang Zhenxue should be dismissed. | | 一审法院判决：1、王振学与村委会签订的土地承包合同有效；2、王淑荣对王振学承包的土地不享有1.08亩承包经营权。白城中院二审判决：驳回王淑荣的上诉，维持原判。白城中院再审后判决：1、撤销二审判决和一审判决第二项；2、维持一审判决第一项。2009年12月吉林高院裁定驳回王淑荣的再审申请。2012年6月吉林高院提审后判决：1、撤销一、二审判决及原再审民事判决；2、驳回王振学的诉讼请求。 |
| Adjudication | | 裁判结果 |
| The Supreme People's Court tried the case directly and held that as an urban resident, Wang Shurong was not entitled to land contractual management in the second round of extended land contracting. First, in January 1992, Wang Shurong transferred her permanent residence from Wang Zhenxue's household to the jurisdiction of Xinli Police Station of Baicheng City. It was provided for in paragraph 3 of Article 26 of the Law on the Contracting of Rural Land that “During the contract period, where a household that undertakes the contract shifts to a districted city, thereby becoming a non-agricultural hukou, the contracted farmland and grassland shall be returned to the party awarding the contract. If the household undertaking the contract refuses to return such land, the party awarding the contract shall be entitled to withdraw it.” It was clear that the transfer of a permanent residence to a districted city to become a non-agricultural hukou was the condition for losing the right to the contractual management of rural land. Since there were no specific provisions on the condition for rural residents' losing of the right to land contractual management in the current Chinese laws, it could be determined only by reference to the most similar clauses of laws. The aforesaid provisions should serve as the legal basis for determining whether Wang Shurong was entitled to the contractual management of the land contracted by the household of Wang Zhenxue in the second round of land contracting. At that time, the permanent residence of Wang Shurong has been relocated to a districted city and she has become an urban resident. Therefore, she should no longer be entitled to the contractual management of rural land. The local second round of land contracting was still governed by the provisions of Article 15 of the Law on the Contracting of Rural Land and was conducted on the basis of farmer households of the collective economic organization. In the extended land contracting, the land was only measured other than adjusted, which complied with the policy of “land remains unchanged regardless of any change in the number of farmer household members.” By then, Wang Shurong no longer a family member of Wang Zhenxue's household and therefore she was not entitled to the land contractual management in the second round of extended land contracting. Second, the Rural Land Contractual Management Certificate was an important basis for determining whether the party concerned was entitled to the contractual management of rural land in a civil case. | | 最高人民法院提审认为，王淑荣作为城市居民，在二轮土地延包中不享有土地承包经营权。第一，王淑荣于1992年1月将户口从王振学家迁至白城市新立派出所辖区内落户。《农村土地承包法》第二十六条第三款之规定：“承包期内，全家迁入设区的市，转为非农业户口的，应当将承包的耕地和草地交回发包方。承包方不交回的，发包方可以收回承包的耕地和草地。”可见迁入设区的市、转为非农业户口，是丧失农村土地承包经营权的条件。由于目前我国法律没有对农村居民个人丧失土地承包经营权的条件作出明确具体的规定，因此，只能比照法律中最相类似的条款进行认定，上述规定应当成为认定在第二轮土地承包中，王淑荣是否对王振学家承包的土地享有承包经营权的法律依据。此时王淑荣的户口已经迁入设区的市，成为城市居民，因此不应再享有农村土地承包经营权。当地第二轮土地承包仍依照土地承包法第十五条之规定，以本集体经济组织的农户为单位。延包的含义是只丈量土地，不进行调整。符合增人不增地、减人不减地的政策。王淑荣此时已不是王振学家庭成员，在二轮土地延包中不享有土地承包经营权。第二，《农村土地承包经营权证》是民事案件中认定当事人是否具有农村土地承包经营权的重要依据。 |
| Wang Zhenxue appealed because the arbitrament made by the Rural Land Contracting Arbitral Committee of Taobei District confirmed that Wang Shurong was entitled to the contractual management of 0.964 mu of land that was contracted by his household. It was specified in the arbitrament that if any person was against the arbitrament, he or she may appeal within 30 days. Therefore, the court should accept the case and render a judgment. In addition, Wang Shurong did not request the local villagers' committee to separately contract out land to her; instead, she claimed that she was entitled to the contractual management of 1.08 mu of land that was contracted by the household of Wang Zhenxue. Therefore, the aforesaid disputes over civil rights and interests between equal parties should not be settled through administrative proceedings. The judgment of the Supreme People's Court revoked the retrial judgment rendered by the High People's Court of Jilin Province and the civil judgments rendered by the Intermediate People's Court of Baicheng City, and sustained the judgment of second instance of the Intermediate People's Court of Baicheng City. | | 王振学起诉是因为洮北区农村土地承包仲裁委员会作出的裁决，确认王淑荣在其家庭承包的土地中享有0.964亩土地承包经营权。该裁决书中有如不服裁决，可在30日内向法院起诉的内容。因此，法院应当受理此案并作出判决。另外，王淑荣并未请求当地村委会另行向其发包土地，而是主张在王振学一家承包的土地中，享有1.08亩承包经营权。故对于上述发生在平等主体之间的民事权益之争，不应通过行政诉讼解决。最高法院判决撤销了吉林高院的再审判决和白城中院民事判决，维持白城中院的二审判决。 |
| Significance | | 典型意义 |
| According to the four judgments rendered by the courts of Jilin Province at three levels, some courts had different views on whether a court may accept a civil lawsuit that was brought by the party concerned on the ground that he or she was entitled to the contractual management of the land that was contracted by any other person and whether a court may determine whether a natural person was a qualified member of a rural collective economic organization under certain circumstances. As specified in this case, a court should, by reference to paragraph 3 of Article 26 of the Law on the Contracting of Rural Land, render a judgment on whether the party concerned was entitled to the contractual management of rural land on the basis of confirming whether the party concerned was a qualified member of a rural collective economic organization. Therefore, this case was of guiding significance to some extent. | | 从吉林省三级法院的四个裁判结果看，部分法院对是否应当受理当事人以其在他人承包的土地中享有承包经营权为由提起的民事诉讼以及是否可以在一定条件下对某个自然人是否具有某个农村集体经济组织成员资格作出认定的问题，认识不一。本案明确了法院在审理此类案件中，应当比照《农村土地承包法》第二十六条第三款之规定，在认定当事人是否具有某个农村集体经济组织成员资格的基础上对其是否享有农村土地承包经营权问题作出裁决，因而具有一定指导意义。 |
| II. Yu Jianshui v. Industrial and Commercial Bank of China Co., Ltd. Shanghai Anshan Road Sub-branch and Industrial and Commercial Bank of China Co., Ltd. Shanghai Yangpu Sub-branch for Deposit Contract Dispute | | 二、俞建水与中国工商银行股份有限公司上海市鞍山路支行、中国工商银行股份有限公司上海市杨浦支行储蓄存款合同纠纷案 |
| Basic Facts | | 基本案情 |
| In early May 2008, a person not involved in the case surnamed Xu and the client manager surnamed Chen of Defendant Industrial and Commercial Bank of China (ICBC) Anshan Road Sub-branch (hereinafter referred to as the “ICBC Anshan Road Sub-branch”) fabricated a one-year time deposit product of the ICBC with the annual sales interest rate of 16%, and set a trap for Plaintiff Yu Jianshui to deposit money in the sub-branch. When handling formalities for opening an account, Chen covertly opened an “e-bank” on behalf of the Plaintiff and got a USBKey, but he only delivered one bank card and one current accounting book of financing account with the seal of Defendant ICBC Anshan Road Sub-branch to the Plaintiff. On the following day, Yu Jianshui separately deposited 200 yuan and 500 yuan to the account in dispute at the cash deposit machine and the bank counter. On May 14, the Plaintiff entered into a Power of Attorney with Chen and Xu and they agreed that the Plaintiff should deposit 25 million yuan to the Defendant ICBC Yangpu Sub-branch for a term of one year and such deposits may not be withdrawn in advance, be transferred, or be reported for loss. Chen signed the contract in the name of the authorized agent of the Defendant and covertly affixed the business seal of the ICBC Yangpu Sub-branch on the contract by taking advantage of his position. On the same day, the Plaintiff deposited 20.91 million yuan to the aforesaid account and Xu transferred the so-called “high discount” of 4.09 million yuan to the account as promised. On the afternoon of the same day, Xu logged on to the e-bank by using the USBKey he fraudulently claimed, transferred 25 million yuan to the account of another person, and withdrew it for personal consumption. After the case was exposed, Xu, Chen, and others were sentenced by the court for the crime of swindling. The Plaintiff filed a lawsuit with the People's Court of Yangpu District, Shanghai Municipality on the ground that the Defendant failed to have the certificate of deposit cashed after such certificate of deposit expired, and requested the court to order the two Defendants to cash the deposit principal of 25 million yuan and the interest thereof. | | 2008年5月上旬，案外人徐某和被告工行鞍山路支行的客户经理陈某虚构该行销售年息高达16%的一年期定期储蓄产品，诱骗原告俞建水前往该行存款。在办理开户手续时，陈某偷偷代原告开通了“网上银行”并领取了U盾，却仅将一张银行卡及一本加盖被告工行鞍山路支行印章的理财金账户活期对账簿交由原告。次日，俞建水在自动存款机和银行柜面分别向系争账户存入200元及500元。同月14日，原告与陈某、徐某签订一份《委托书》，约定由原告存入被告工行杨浦支行2500万元，期限一年，不提前支取，不转移，不挂失。陈某以被告委托代理人的名义在该合同上签字，并利用职务之便，在合同上偷盖了工行杨浦支行的业务章。当日，原告将2091万元存入上述账户，徐某则将承诺的所谓“高额息差”409万元转入该账户。当日下午，徐某即利用冒领的U盾登录网上银行，将2500万元转账支取后供个人挥霍。事发后，徐某、陈某等人因诈骗罪被法院判刑。原告以存单到期被告未兑付为由起诉至上海市杨浦区人民法院，请求法院判令两被告兑付其存款本金2500万元及相应利息。 |
| Adjudication | | 裁判结果 |
| After trail of second instance, the No. 2 Intermediate People's Court of Shanghai Municipality held that: Compared to ordinary depositors, banks were better equipped for preventing crimes committed by criminals by using the banks. Therefore, banks should develop sound business specifications and strictly observe them, avoid risks as much as possible, guarantee the deposit safety of depositors, and safeguard the lawful rights and interests of depositors; however, where a depositor failed to adopt necessary preventative measures although he or she knew in advance that an unlawful infringement may occur, or the depositor deliberately violated the essential safety rules and regulations of the saving institution, which caused his or her property loss, and there was causality between the fault of the depositor and the property loss, the depositor should assume the corresponding liability within the range of his or her fault. | | 上海市第二中级人民法院二审认为，相对于普通储户而言，银行更有条件防范犯罪分子利用银行实施的犯罪，故银行应当制定完善的业务规范，并严格遵守规范，尽可能避免风险，确保储户的存款安全，维护储户的合法权益。但是，如储户事先明知可能发生不法侵害却未采取必要的防范措施，或故意违反储蓄机构必要的安全规章制度而导致其财产受损，且该过错与损害结果之间存在因果关系的，则储户应当在其过错范围内承担相应的责任。 |
| As a bank employee, Chen colluded with the criminal Xu, opened an e-bank for the Plaintiff without approval by utilizing his position and delivered the USBKey he fraudulently claimed to Xu in violation of the deposit procedure, which caused the swindling of the funds involved. The Defendant ICBC Anshan Road Sub-branch had obvious faults in the administration of staff members, the management of the business place, and the deposit operation procedure, and there was causality between such faults and the swindling of the deposit. Although Yu Jianshui opened an account and made deposits at the ICBC Anshan Road Sub-branch in a trap with a fabricated high reward set by a person not involved in the case, if only both the ICBC Anshan Road Sub-branch and Yu Jianshui had handled the account-opening business according to provisions, the person not involved the case surnamed Xu would not have been able to obtain the USBKey associated with the account of Yu Jianshui and even could not have transferred the money in the account of Yu Jianshui to the account of another person without Yu Jianshui's knowledge. Therefore, there was no direct causality between the deposit purpose of Yu Jianshui and the swindling of his deposit. In addition, before Yu Jianshui made the deposit, he separately deposited 200 yuan and 500 yuan to the account in dispute at the cash deposit machine and the bank counter, and deposited another 20.91 million yuan to the account after he confirmed upon inquiry that the aforesaid deposits were successful; after the deposit of 20.91 million yuan was made, Yu Jianshui has always properly kept the bankbook. It was evident that Yu Jianshui has fulfilled the duty of reasonable care. Therefore, the deposit contract entered into between Yu Jianshui and Defendant ICBC Anshan Road Sub-branch was legal and valid and the bank should assume the liability of refunding the deposit principal and the interest of to the Plaintiff. | | 陈某身为银行工作人员，却勾结犯罪分子徐某，利用工作便利，违反存款操作流程，擅自为原告开立网上银行，并领取U盾交由徐某，导致涉案款项被骗取。被告工行鞍山路支行在工作人员管理、营业场所管理以及存款业务操作流程等方面均存在明显过错，且该过错与存款被骗具有相当的因果关系。俞建水虽然受案外人虚构的高额报酬所诱惑而去工行鞍山路支行处开户、存款，但只要工行鞍山路支行与俞建水均按照规定的开户流程办理开户业务，案外人徐某就无法获取与俞建水账户相关联的U盾，更无法在俞建水不知情的情况下从其账户将资金转至他人账户。故俞建水的存款目的与存款被骗取之间并无直接因果关系。而且，俞建水于存款前，在自动存款机和银行柜面分别向系争账户存入200元及500元，查询确认上述款项确实已存入其账户后才向该账户存入2091万元；存款后，俞建水亦始终妥善保管存折，显然其已尽合理注意义务。因此，俞建水与被告工行鞍山路支行的储蓄存款合同关系合法有效，银行应当承担向原告返还存款本息的责任。 |
| Among the 25 million yuan that was deposited in the account of the Plaintiff, 4.09 million yuan was deposited by the criminal and it was the high interest that was paid for the purpose of swindling the account control of the Plaintiff. Therefore, such 4.09 million yuan should be deducted from the deposit principal that should be refunded by the two Defendants and the two Defendants should pay the corresponding interest at the current deposit interest rate. In a deposit contractual relationship, after a depositor made a deposit into a bank, the ownership of capital belonged to the bank and the depositor had the creditor's right to claim the principal and the interest thereof from the bank in accordance with the deposit contract. Therefore, after the criminal transferred the deposit by fraud by utilizing the account control of the depositor, the money recovered should be owned by the bank. Yu Jianshui's failure to receive the recovered money did not affect his claim of the creditor's right from the two Defendants in accordance with the legal relationship of the deposit contract. In view of the above, the court ordered the two Defendants to refund Yu Jianshui the deposit principal of 20.91 million yuan and the interest thereof. | | 原告账户所存入的2500万元中409万元系犯罪分子存入，属于为骗取原告账户控制权而支付的高额利息，故两被告返还的存款本金时应予扣除，并应按同期活期存款利率支付相应利息。在储蓄存款合同关系中，储户将存款存入银行后，资金所有权即归属于银行，储户则享有依据储蓄存款合同向银行主张本息的债权。因此，犯罪分子利用储户账户控制权骗划资金后，追赃所得的资金款项所有权应当归属银行。俞建水未领取追赃款的行为并不影响其依据储蓄存款合同法律关系向两被告主张债权。据此，法院判令两被告返还俞建水存款本金2091万元及相应利息。 |
| Significance | | 典型意义 |
| In recent years, lawsuits regarding the swindling of depositors' deposits in banks by criminals by means of internal and external collusion happened occasionally. This case was a model case in which the depositor was induced by a bank staff member by internal and external collusion on a high-interest savings business to enter into a deposit contract with the bank, the deposit was transferred by fraud, and the deposit contract dispute between the bank and the depositor was arisen. The focal issues in the trial of this case were whether the bank and the depositor had faults in the loss caused by the swindling of deposit and how the bank and the depositor would assume liabilities corresponding to their faults. In this case, on the basis of the nature and features of a deposit contract, change in the ownership of monetary capital, performance of contractual obligations by the bank as well as relevance between the fault of the Plaintiff and the loss, the court determined that the bank should assume full liabilities for the loss to the depositor's deposit principal and the interest thereof in accordance with the contractual provisions. This determination has better safeguarded the lawful rights and interests of the depositor as a financial consumer and was of great significance in promoting banks to regulate transaction process and strengthen administration. The judgment of this case fully embodied and gave play to the guiding role of judicial decisions in regulating the financial market. | | 近年来，储户的银行存款被犯罪分子通过内外勾结等方式诈骗而致涉讼的案件时有发生。本案是一起因银行工作人员内外勾结，以高息揽储业务引诱储户与银行建立储蓄存款合同关系，进而骗划存款资金，引发银行与储户之间储蓄存款合同纠纷的典型案例。本案审理的关键在于银行与储户对存款被骗导致的损失是否具有过错，以及如何承担与其过错相适应的责任。本案中，法院结合储蓄存款合同的性质特点、货币资金所有权的变动、银行履行合同义务的情况以及原告过错与损失结果之间的关联性，认定银行应当按照合同约定对储户的存款本金及利息损失承担全部责任，较好地维护了储户作为金融消费者的合法权益，对促进银行规范交易流程、加强管理具有重要意义。本案的判决充分体现和发挥了司法判决对金融市场的规范导向作用。 |
| III. A/S Dan-Bunkering Ltd. v. Owner of the "Xing Yao" Vessel for Maritime Claim Preservation before an Action Began and Seizure of the Vessel | | 三、丹麦供油有限公司与 “星耀”（XING YAO）轮船舶所有人诉前海事请求保全扣押船舶案 |
| Basic Facts | | 基本案情 |
| On December 12, 2012, the Applicant A/S Dan-Bunkering Ltd. provided bunker oil for the Panamanian “Xing Yao” Vessel owned by the Respondent in the water areas of Hong Kong, including 485.1820 metric tons of Fol80Cst and 158.5280 metric tons of Gas-Oil, with the total costs of 461,238.21 US dollars. The Respondent only paid 1,000,000 yuan (converted to 158,730 US dollars) and still owed 302,508 US dollars. Afterwards, the vessel sailed into the water areas of Shantou City, Guangdong Province and the Respondent has contacted the buyer and prepared to deliver it to a new owner. Under urgent circumstances, in order to prevent failure of the creditor's right, on January 22, 2013, the Applicant filed a petition for maritime claim preservation before an action began with the Guangzhou Maritime Court, applied for the seizure of the “Xing Yao” vessel before an action began, and ordering the Respondent to provide a guarantee of 302,508 US dollars or equivalent RMB. The “Xing Yao” vessel was 225 m in length, 32 m in width, 17.81 m in moulded depth, and 62,343 tons in carrying capacity. Due to its large tonnage, it failed to dock at the port. It anchored in the water area 25 sea miles away from the Shantou Port and it may leave at any time. | | 申请人丹麦供油有限公司（A/S Dan-Bunkering Ltd.）于2012年12月12日在香港海域为被申请人所属的巴拿马籍“星耀”（Xing Yao）轮提供485.1820公吨Fol80Cst及158.5280公吨Gas-Oil的船用油，费用为461，238.21美元。被申请人仅支付人民币1，000，000元（折合美元为158，730美元），仍欠302，508美元。后该轮驶入广东汕头水域，被申请人已联系好买家正准备向新的船东交船，情况较为紧急。为防止债权落空，申请人于2013年1月22日紧急向广州海事法院提出诉前海事请求保全申请，申请诉前扣押“星耀”轮，并责令被申请人提供302，508美元或等值人民币的担保。“星耀”轮船长225米，船宽32米，型深17.81，载重吨62343，因吨位大无法靠泊码头，在汕头港离岸约25海里水域抛锚，随时可能驶离。 |
| Adjudication | | 裁判结果 |
| Upon receipt of the petition, the Guangzhou Maritime Court immediately formed a collegial bench to examine the petition and required the Applicant to provide the specific location of the vessel; and prepared the ruling and order on the seizure of the vessel. According to legal provisions, a maritime claimant should file a petition for maritime claim preservation before an action began with the maritime court at the place where the vessel is located. In this case, the maritime claimant provided evidence that the “Xing Yao” vessel has left the water areas of Hong Kong and entered or anchored in the water area of Shantou City, Guangdong Province. Therefore, the Guangzhou Maritime Court should legally exercise the maritime jurisdiction and seize the vessel. The Applicant claimed the seizure of the vessel before an action began under urgent circumstances, which met the statutory conditions for maritime claim preservation before an action began. Upon examination, the Guangzhou Maritime Court held that the petition of the Applicant complied with legal provisions and should be approved. In accordance with item (12) of Article 21, items (1) and (2) of paragraph 1 of Article 23, and paragraph 1 of Article 28 of the Special Maritime Procedure Law of the People's Republic of China, the court ruled to approve the petition for maritime claim preservation before an action began filed by the Applicant; seize the “Xing Yao” vessel owned by the Respondent that anchored near the Shantou Port; and order the Respondent to provide a guarantee of 302,508 US dollars or equivalent RMB. On January 24, 2013, after traveling by water taxi for nearly seven hours in strong waves in the sea, judges got aboard the vessel which was 25 sea miles away from the port and seized the 60,000 ton-level “Xing Yao” vessel; after the seizure of the vessel, judges actively brought about the negotiation between the Applicant and the Respondent and conducted pre-trial mediation presided over by the court. On January 29, the Applicant obtained full indemnity from the Respondent. | | 广州海事法院收到申请后，立即组成合议庭对申请进行审查，要求申请人提供被扣船舶的具体地点；另一方面制作扣押船舶裁定书及扣船令。根据法律规定，海事请求权人应向船舶所在地的海事法院提出诉前海事请求保全申请，本案海事请求权人提供了“星耀”轮已驶离香港海域进入广东汕头海域抛锚的证据，应由广州海事法院依法行使海事司法管辖权扣船。申请人选择诉前扣押该轮，且情况较为紧急，符合诉前海事请求保全的法定条件。经审查，广州海事法院认为，申请人的申请符合法律规定，应予准许。依照《中华人民共和国海事诉讼特别程序法》第二十一条第十二项、第二十三条第一款第一、二项、第二十八条第一款的规定，裁定准许申请人的诉前海事请求保全申请；扣押被申请人所属的停泊于汕头港的“星耀”轮；责令被申请人提供302，508美元或等值人民币的担保。2013年1月24日，法官乘坐交通艇往返近七个小时，冒着海上风浪，在离岸25海里水域登轮扣押了六万吨级的“星耀”轮；扣押船舶后，法官又积极促成申请人与被申请人进行协商，在法院主持下进行了诉前调解，1月29日，申请人即从被申请人处得到全额赔款。 |
| Significance | | 典型意义 |
| This case involved a dispute among parties from different countries including the Kingdom of Denmark and Panama and the laws of Hong Kong, China. After the vessel involved entered the water area of Guangdong Province, the court of the Chinese mainland efficiently dissolved the dispute among the parties concerned only in five days through seizure of the vessel before an action began by effectively performing the judicial jurisdiction and carrying out pre-trial mediation, and actually achieved the dissolution of disputes upon case closure. On March 26, 2013, the Guangzhou Maritime Court received a letter from the Applicant, which expressed its gratitude to the Chinese court's timely and efficient seizure of the vessel. | | 本案是一宗涉及丹麦王国、巴拿马等不同国家当事人及中国香港法域的纠纷，涉案船舶进入中国广东海域后，中国内地法院通过及时有效地行使司法管辖权诉前扣押船舶，并开展诉前调解工作，仅用5天时间便高效地解决了当事人之间的纠纷，真正做到了“案结事了”。2013年3月26日，广州海事法院收到申请人致函，对中国法院及时高效扣船解决纠纷表示感谢。 |
| This case has set three records of the Guangzhou Maritime Court and the people's court of Shantou City, namely, “the largest tonnage of a foreign vessel that was seized,” “the farthest distance from the port for seizing a vessel by water taxi,” and “the shortest time taken for dispute settlement.” The timely and efficient seizure of a vessel was a crucial approach for safeguarding rights for a foreign party that came to a Chinese court for litigation for the first time and was also a window through which the foreign party actually felt China's judicial credibility. The satisfactory closure of this case embodied the significances of China's maritime judicial practice of “implementing the strategy of fine works and creating first-class brands,” increased the confidence of foreign parties concerned in China's maritime judicial practice, and was favorable to the establishment of Chinese courts' judicial credibility and good images of Chinese judges. | | 本案创下了广州海事法院汕头法庭的三项纪录：“扣押外轮吨位最大”、“乘艇扣船离岸最远”和“解决纠纷时间最短”。及时有效的扣船工作，对于首次到中国法院进行诉讼活动的外国当事人而言，是至关重要的维权途径，是切实感受中国司法公信力的窗口。这一案件的圆满解决体现了中国海事司法“实施精品战略，打造一流品牌”工作的重大意义，增强了国外当事人对中国海事司法的信任度，有利于树立中国法院的司法公信力和法官良好的司法形象。 |
| IV. Shanghai Hegu Biotech Co., Ltd. v. Shanghai Administration for Industry and Commerce for Refusing to Accept the Industry and Commerce Administrative Penalty Decision | | 四、上海赫谷生物科技有限公司诉上海市工商行政管理局不服工商行政处罚决定案 |
| Basic Facts | | 基本案情 |
| From September 2011, Plaintiff Hegu Company has purchased a series of “CITI” health food, including "CITI Jinzhukang" and other five varieties, from Sangang Company at the price of 60 yuan per box (65 yuan per box after January 2012) and sold them in Shanghai. In the business operations, the Plaintiff collected a large number of private telephone numbers and required its employees to utilize the Traveling Words Art that was uniformly designed and produced by the Company and other deceptive preset words art on the target people aged 60 or more, invited the elderly to participate in tourist activities it organized falsely in the name of Citigroup Inc. and Citibank free of charge, falsely claimed that Citigroup Inc. was established in 1832, played videos or PowerPoint documents with such publicity of corresponding therapeutic effects of “CITI” series of products. In the conference sales, the Plaintiff arranged its employees without any practicing qualification to take the pulse of the elderly on site in the name of “TCM doctors,” “diagnosed” the diseases of the elderly one by one by reference to the diseases listed in the Survey on Applications for Citigroup Traveling the Company has formerly required the elderly to fill out, and took the opportunity to sell a series of “CITI” health products to the elderly at the price of 898 yuan per box (798 yuan per box before February 2012). According to the special audit conducted by Shanghai Gong Xin Zhong Nan Certified Public Accountants Co., Ltd., the sales volume of Hegu Company from September 2011 to September 2012 amounted to 20,532,458 yuan; after deducting the costs of product purchasing and marketing amounting to 16,891,096.13 yuan, the refund to consumers amounting to 2,365,535.00 yuan, and the relevant tax of 12,795.92 yuan, the illegal gains amounted to 1,263,030.95 yuan. | | 原告赫谷公司自2011年9月起，以60元/盒（2012年1月后为65元/盒）的价格向三港公司采购“花旗·金竹康”等六个品种的“花旗”系列保健食品在上海地区销售。经营过程中，原告自行搜集大量上海市私人电话，以60岁以上的老年人作为目标人群，要求员工使用公司统一设计、制作的《旅游话术》等含有欺骗性的预设话术，以假冒的美国花旗集团、花旗银行等名义邀请老年人免费参加其组织的旅游活动，还谎称美国花旗集团成立于1832年，播放“花旗”系列产品相应治疗作用等宣传内容的视频或者ppt资料。会销过程中，原告安排无行医资质的员工以“中医”的名义，现场为老年人把脉，对照公司之前要求老年人填写的《美国花旗旅游申请调研表》中所反映的疾病，相应的逐一“诊断”老年人所患疾病，并借机以898元/盒（2012年2月前为798元/盒）价格向老年人销售“花旗”系列保健食品。经上海公信中南会计师事务所有限公司专项审计，赫谷公司自2011年9月至2012年9月，销售额总计20，532，458元；扣除产品采购、营销费用等成本合计16，891，096.13元、向消费者退款2，365，535.00元、相关税费12，795.92元，违法所得计1，263，030.95元。 |
| On June 18, 2013, the inspection brigade of the Shanghai Administration for Industry and Commerce (hereinafter referred to as the “inspection brigade”) made an administrative penalty decision on Hegu Company and determined that the aforesaid act of Hegu Company has constituted a fraud. In accordance with the Regulations of Shanghai Municipality on the Protection of Consumer Rights and Interests, the inspection force brigade decided to confiscate the illegal gains of the party concerned amounting to 1,263,030.95 yuan and impose a fine one time of the illegal gains amounting to 1,263,030.95 yuan, 2,526,061.90 yuan in total; and notified the party concerned of the right to sue and the time limit for lawsuit. The Plaintiff held that the inspection brigade should punish it by reference to the terms on false publicity in the Anti-Unfair Competition Law and therefore it filed an administrative lawsuit with the People's Court of Xuhui District, Shanghai Municipality and requested the Court to revoke the administrative penalty decision on it. | | 上海市工商行政管理局检查总队（下称“检查总队”）于2013年6月18日对赫谷公司作出行政处罚决定，认定其上述行为已构成欺诈，依据《上海市消费者权益保护条例》的规定，决定对当事人处罚如下：没收违法所得1，263，030.95元；处以违法所得一倍罚款1，263，030.95元，以上合计处罚2526061.90元。并告知诉权和起诉期限。原告认为应援引《反不正当竞争法》中有关虚假宣传的条款对其进行处罚，遂向上海市徐汇区人民法院提起行政诉讼，请求法院撤销对其作出的行政处罚决定。 |
| Adjudication | | 裁判结果 |
The People's Court of Xuhui District, Shanghai Municipality held that the focal dispute of this case was the issue concerning the application of law, that is, whether the act of the Plaintiff constituted a “fraud” or a “false publicity.” It was provided for in Article 22 of the Regulations of Shanghai Municipality on the Protection of Consumer Rights and Interests that “Business operators shall not impair the lawful rights and interests of consumers by such methods of fraud as passing fake commodities off as genuine ones, passing inferior commodities off as superior ones, adulterating commodities, and falsely pricing when they provide commodities or services. The ‘fraud' as mentioned in the preceding paragraph refers to an act of intentionally providing consumers with false information or deliberately concealing the truth in order to induce consumers into making false declaration of will.” It could be seen that “consumption fraud” was defined by enumeration and catch-all summarization. Except for the four methods of fraud as explicitly enumerated, as long as a method used by a merchant met essential conditions, it may be determined as a consumption fraud. In this case, in the activity organized for the elderly consumers which was entitled free traveling but was actually conference sale, the Plaintiff conducted false publicity on the effects of the “CITI” series of health products, sold the “CITI” series of health products by means of "taking the pulse" by its employees pretending to be TCM doctors. Such act of the Plaintiff conformed to the definition of fraud in legal provisions. In this case, each and every fraudulent means may constitute an act of false publicity or illegal advertising as prescribed in the Anti-Unfair Competition Law of the People's Republic of China, the Advertising Law of the People's Republic of China, or other relevant laws; however, the aforesaid methods and means were closely linked with each other and finally constituted a complete consumption fraudulent act. In addition, the determination of a fraudulent act focused on the protection of the lawful rights and interests of consumers, while the determination of a false publicity focused on the protection of the rights and interests of other competitors, not premised on an erroneous decision of consumers. In conclusion, the facts of the sued administrative penalty were clear, the application of laws and regulations was proper, and the procedures were legal. On this basis, the court of first instance rendered a judgment to sustain the sued administrative penalty.
．．．．．． | | 上海市徐汇区人民法院认为，本案的争议焦点系法律适用问题，亦即原告的行为构成“欺诈”还是“虚假宣传”。《上海市消费者权益保护条例》第二十二条
．．．．．． |
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