The Xuhui Court recently held a press conference on ten typical cases of optimizing the legal environment for business operations in 2022. This conference is a series of press conferences on the promotion of the construction of a world-class legal business environment by the Shanghai Higher People's Court - "I add weight to business" In the sixth session, Xuhui courts reported on the optimization of the business legal environment in 2022 and released ten typical cases.

The Xuhui Court gave full play to its judicial functions, comprehensively deepened the construction of a rule-of-law business environment, and regularly released key work data on a rule-of-law business environment, as well as several opinions on judicial service guarantee, epidemic prevention and control, and economic recovery and restructuring. Promote online case handling and improve the convenience of litigation. In 2021, the Xuhui court took the lead in exploring and promoting the whole process of online case handling, providing Xuhui samples for courts in the city. Especially during this year's epidemic, online litigation has shown its talents. Online case filing, electronic service, online court hearing and mediation have further facilitated the litigation of enterprises and the masses. At the same time, the Xuhui Court continued to protect fairness and justice in accordance with the law, safeguard rights and interests, increase judicial protection of intellectual property rights, and set a benchmark in the industry through typical case adjudication.

The ten typical cases of optimizing the legal environment for business operations in 2022 released by the Xuhui Court cover the protection of the subject rights and interests of the market, the curbing of unfair competition, the use of innovative means to fully realize judicial functions, and the optimization of execution work models. The legal issues encountered in the operation process provide demonstration guidance and play a positive role in promoting the sustainable development of enterprises.

Zhu Zhengwei, a representative of the Shanghai Municipal People's Congress who attended the press conference, was deeply impressed by the ten typical cases of defrauding registered couriers. In the case, after illegally obtaining the identity information of others, the defendant falsely used the identity of others to register as a courier on the APP operated by a certain company, received orders under the guise of delivering goods, and defrauded him many times. The defendant took advantage of the security loopholes in the recruitment of the mobile phone terminal of the enterprise involved, and used the same modus operandi to defraud him several times in just one month. This typical case also serves as a warning and education for enterprises. "For enterprises to develop, the rule of law must come first." Zhu Zhengwei told reporters, "The concept of the rule of law in enterprises is very strong, and it will also play a very good role in the development of enterprises."

As a member of the Xuhui District CPPCC and a special supervisor of the Xuhui Court, Li Zhimin is very concerned about the whole process of online case handling mentioned by the Xuhui Court. "Electronic service, online trial, etc., these have saved the company's transportation time and costs." In Li Zhimin It seems that the Xuhui Court has thought of many ways to optimize the regional legal business environment and solved many problems. Through typical cases in this press conference, enterprises can truly feel the optimization of the regional business environment and provide a strong judicial guarantee for further promoting regional economic development.

Ten Typical Cases

Protecting the rights and interests of market players and maintaining the healthy development of the market 0 1 Online recruitment of couriers has potential safety hazards Imposter registration Habitual scammers bear criminal responsibility——Xue Moumou’s fraud case

Defendant Xue Moumou illegally obtained other people’s identity information, registered as a courier on an APP operated by a company in Beijing, and received orders under the guise of delivering goods, and defrauded ten Apple-branded mobile phones and stylus pens worth 77,000 yuan. one. They also fabricated orders in the name of customers, falsely reported the loss of goods and claimed 14,000 yuan from the company, but failed because the company found abnormalities.

The perpetrators in this case took advantage of the security loopholes of face recognition in the recruitment of the mobile phone terminal of the involved enterprise, registered under false names and defrauded them many times, and the amount was huge. The court took the trial of this case as an opportunity to identify the risk points of the enterprise's operation, formulate and issue judicial suggestions to strengthen source governance, promote enterprises to plug loopholes in operation and management, and ensure the healthy and sustainable development of the logistics industry.

02 Adjudicated that the shareholder's huge capital contribution should be accelerated and expired according to the law to protect the legal rights and interests of the bankrupt creditor—Shanghai XX Culture Investment Development (Group) Co., Ltd. v. Wu XX and others for a dispute over the recovery of unpaid capital contributions

The plaintiff, Shanghai XX Cultural Investment Development (Group) Co., Ltd. was initiated and established by the defendant Xu XX in February 2012, and the paid-in capital has been paid. In June 2015, defendant Xu XX transferred 100% of the plaintiff's equity to defendant Wu XX. The latter two defendants signed an equity holding agreement, Wu XX held all the equity for Xu XX, and Xu XX was responsible for the business activities. In January 2017, Wu Moumou changed the shareholder's contribution to 100 million yuan, and went through the industrial and commercial change registration. In December 2020, the court accepted the plaintiff's bankruptcy liquidation case. Because the administrator found that Wu XX had not fulfilled any obligation of capital contribution, he filed a lawsuit request: Wu XX made a supplementary capital contribution of more than 7.83 million yuan; Xu XX was jointly and severally liable for payment.

In this case, based on the principle of publicity in commercial law and the principle of appearance, it is determined that legally registered shareholders have the effect of publicity. At the same time, this case also determined the legal relationship of equity holding, that is, the actual investor has two legal relationships, internal and external, and the relationship between the two defendants is determined to be a creditor-debtor relationship, which does not have effect on parties other than the contract. The debtor can be "resurrected" by accelerating the maturity of the shareholder's capital, and ensure the rights and interests of the bankrupt creditor to win the lawsuit.

Restraining unfair competition and maintaining market transaction order 0 3 After mediation, another violation of intellectual property rights was sentenced to three times the punitive damages——A certain (China) Water Pump System Co., Ltd. and a certain Water Pump (Shanghai) Co., Ltd. violated trademark rights and Unfair competition dispute case

The plaintiff, XX (China) Pump System Co., Ltd., was established and authorized by a German company, and enjoys the exclusive right to use the trademarks such as "WILO" and "Wei Le" in mainland China and the right to independently defend their rights. The plaintiff used the trade names such as "Wei Le" and "Wilo" on water pumps and other related products to carry out business activities for a long time, and has already gained a relatively high reputation. The defendant XX Pump (Shanghai) Co., Ltd. had applied for the registration of "WILe" and "Weile" trademarks, but both were confirmed invalid or rejected. In 2013, the effective civil judgment found that the "WILE" trademark used by the defendant on its products and accessories infringed the exclusive right to use the registered trademark "WILO", and ordered the defendant to stop the infringement, compensate for losses, and eliminate the impact. In 2014, the name of the defendant's enterprise was changed to its current name. The plaintiff and a certain German company jointly sued the defendant in 2015, demanding that the defendant stop using the company name, compensate for economic losses, and eliminate the impact. In the end, the parties reached a mediation agreement. Afterwards, the defendant still marked "WEILE PUMP" and other logos on its products, accessories, and materials, and used the same or similar logos in large quantities in the website domain name and its content, WeChat official account name, and analysis content.

After trial, the court of first instance ruled: the defendant immediately stopped infringing on the plaintiff’s right to license the trademark, canceled the domain name, stopped using the WeChat official account, and changed the company name; compensated economic losses of 15 million yuan and reasonable expenses of 100,000 yuan; "Published a statement to eliminate the impact; dismissed the plaintiff's remaining claims. The defendant refused to accept it and filed an appeal. The judgment of the court of second instance: the appeal was dismissed and the original judgment was upheld.

If the intellectual property rights of others are intentionally infringed, and the circumstances are serious, the infringed party has the right to request corresponding punitive damages. If the same or similar infringing acts are committed again after being subject to administrative penalties or court judgments for infringing rights, it can be determined that the circumstances are serious and punitive damages are applicable. The right holder sues again, which does not constitute a repeated lawsuit. The court protects the right to sue in accordance with the law and prevents unfair competition.

0 4 Resigned employees take away and use customer information related subjects to jointly bear tort liability - a dispute over trade secret infringement between XX Industrial (Shanghai) Co., Ltd. and Shanghai XX Industrial Co., Ltd.

The plaintiff XX Industrial (Shanghai) Co., Ltd. is an enterprise engaged in the import and export of metal materials, which has accumulated a large amount of customer information and maintained a competitive advantage in the market. The defendant Wu Moumou was a former employee of the plaintiff. During his tenure, the plaintiff informed Wu Moumou of confidential matters and took certain confidentiality measures for customer information. The business scope of the defendant Shanghai XX Industrial Co., Ltd. is the same as that of the plaintiff, and the legal representative and the defendant in this case, Huang XX, is the spouse of Wu XX. After Wu Moumou left his job, he sold the same products to the plaintiff's overseas customers in the name of the company, with an amount of more than 15 million US dollars.

After trial, the court of first instance ruled that the three defendants should immediately stop infringing upon the plaintiff's trade secrets and jointly compensate the plaintiff for economic losses of 4.5 million yuan and reasonable expenses of 250,000 yuan; the plaintiff's remaining claims were dismissed. After the parties appealed, the court of second instance ruled: reject the appeal and uphold the original judgment.

The ex-employee violated the requirements of the obligation to keep business secrets with the original unit, and used the customer information obtained during the tenure of the original unit, infringing on the business secrets of the obligee, and jointly bear the tort liability with the related parties. Trade secrets can bring huge benefits to the obligee. The economic value of customer information, as a business secret among commercial secrets, is increasingly valued by obligees. China's current revision of laws and regulations related to trade secrets has reduced the burden of proof for obligees, increased the cost of infringement for infringers, further improved the judicial environment for the protection of trade secrets, and better resolved the long-standing legal issues in trade secret infringement cases. Human Litigation Dilemma.

0 5 Piercing the veil to explore the real employment relationship Resigned personnel bear the responsibility for non-compete breach of contract——Wang Mou and a certain Chinese limited company non-compete dispute case

In August 2007, Wang went to work in a certain China limited company. In July 2020, Wang Mou offered to resign. In August, a certain China limited company issued a non-compete notice. In July 2021, a certain China limited company applied for labor dispute arbitration of non-competition. Both parties refused to accept the arbitration award and filed a lawsuit. Wang requested not to pay liquidated damages for violating the non-competition agreement, and provided his labor contract with Company A. The business scope of Company A is technology development, etc. From November 2020, it will pay Wang's salary every month, go through the basic pension insurance procedures, and pay social insurance premiums. A certain China Co., Ltd. provided records of Wang’s vehicle entering and exiting Company B 72 times under the name of “fixed vehicle” from April to July 2021, as well as evidence that Wang possesses Company B’s access card, proving that Wang is actually Company B provide labor. In addition, provide the approval opinions on the project approval of the project declared by Company B in March 2021, proving that Company B has a competitive relationship with a certain Chinese limited company. Wang was required to pay more than 1.96 million yuan in liquidated damages and return more than 160,000 yuan in non-compete compensation.

After trial, the court of first instance ruled to support all the claims of XX China Co., Ltd.

Wang refused to accept it and filed an appeal. The judgment of the court of second instance: the appeal was dismissed and the original judgment was upheld.

This case has certain reference significance for the court to identify the actual employment subject, comprehensively judge the competition relationship beyond the business scope of the business license, and reasonably evaluate the compensation standard. By promoting the socialist core values, advocating the concept of honesty and credit, and giving full play to the radiation effect of judgments, it helps core talents flow in a lawful and orderly manner, and purifies the business environment.

Comprehensive use of innovative means to fully realize judicial functions 0.6 Platform employees use subsidies to accept bribes. Judicial advice to promote enterprises to improve their systems——Crime of accepting bribes by a non-state official named Qiu

From 2017 to 2021, when the defendant Qiu Moumou served as a business development specialist of a company affiliated to a certain platform, he took advantage of his job convenience in selecting merchants applicable to platform subsidy activities and applying for subsidies, and gave priority to applying for subsidies for a number of catering merchants in charge of him. And received more than 1.01 million yuan of money from merchants. In June 2021, the defendant surrendered himself to the public security organ, and returned all illegal gains during the investigation and trial stages.

After the trial, the court ruled that the defendant Qiu Moumou committed the crime of accepting bribes by non-state employees, and was sentenced to two years and three months in prison, suspended for three years, and fined RMB 20,000; the illegal gains were confiscated.

Punishment of platform staff accepting bribes is not only to protect the individual interests of enterprises, but also to maintain the order of the fair competition market and enhance the credibility of socialist market economic transactions. In response to the lack of legal risk awareness and unsound management systems of the companies involved in the case, the court sent judicial advice to the companies, which is conducive to the establishment of fair and open rules and a prudent supporting regulatory system for the companies.

0 7 Quickly deal with cases involving people's livelihood preservation to ensure the living needs of nursing homes during the closure period——Hang Moumou v. Shanghai Moumou Nursing Home and other private loan disputes

In March 2022, the court accepted the case of the plaintiff Hang XX suing the defendant Shanghai XX nursing home and other private lending disputes. The claim was to pay the loan principal of 5 million yuan and interest. The court sealed up the defendant's bank account according to the application, and then entered the epidemic control period. On April 7, the defendant left a message through the 12368 hotline, saying that the frozen account was a basic account, and that daily supplies and other expenses were paid out of this account. During the lockdown period of the epidemic, the freezing of the account caused difficulties in daily life expenses, and requested to unseal the account.

The judge immediately organized the plaintiff and the defendant to carry out an online conversation, but the two sides failed to reach a consensus. In order to solve the urgent needs of 156 elderly people, the commercial trial court, the filing court, and the executive bureau jointly studied and judged the case, and decided to unfreeze the basic account of the nursing home first, take out 150,000 yuan as necessary expenses, and then freeze it immediately. On April 15, both parties unanimously agreed on the above plan. Various departments of the court coordinated measures to seal up the account again on April 16 after the nursing home took out the living expenses.

After the trial, the court ruled that: the nursing home returned the loan principal of 5 million yuan and interest to Hang XX, and Chen XX and Zuo XX were jointly and severally liable for the repayment. Neither party appealed. It not only guarantees the basic living needs of the elderly in nursing homes, but also takes into account the realization of the legitimate rights and interests of creditors, fully demonstrates the feelings of justice for the people, and contributes due strength to the fight against the epidemic and the maintenance of social stability.

08Joining hands with Yinji Association for multi-dispute resolution relying on the whole process of efficient mediation——Serial cases of copyright infringement disputes between XX (Tianjin) Music Co., Ltd. and more than 30 karaoke operating companies

From January to May 2022, the plaintiff XX (Tianjin) Music Co., Ltd. sued the defendant Shanghai XX Entertainment Co., Ltd. and more than 30 karaoke operating companies for copyright infringement disputes, a total of 180 cases, most of which were filed during the epidemic. The plaintiff claimed that he obtained the copyright of some music and television works in accordance with the law, and had the right to authorize external parties in his own name and take corresponding rights protection measures. It has recently been discovered that many karaoke business establishments in Shanghai have reproduced and preserved their copyrighted music and television works without permission and payment of royalties, and provided customers with on-demand services. Requested to judge the defendant to stop the infringement and compensate for the losses. The target amount of each case reached more than 20,000 yuan.

During the special period of the epidemic, the advantages of electronic service, efficient and contactless mediation in micro-court (online) have been fully demonstrated for the group of enterprises that have not yet been allowed to operate. Obtaining the accurate service information of the contracted enterprises through the music copyright collective management organization, and merging mediation under the premise of a unified plan are the keys to the successful resolution of the case. When guiding both parties to determine the amount of compensation, they adhered to the coordination between the intensity of protection and the degree of innovation, and the adaptation of the price of infringement and the consequences of harm, so as to achieve the harmony and unity of judicial protection and judicial temperature.

Optimizing the execution work mode to ensure good faith and civilized execution 0.9 law enforcement agencies jointly formulate and issue the implementation plan and jointly start the advance payment procedure for wage arrears security funds —— Shanghai Xuhui District Human Resources and Social Security Bureau applied for the implementation of Shanghai XX Intelligent Technology Co., Ltd. to pay labor remuneration

In January 2021, Shanghai Xuhui District Human Resources and Social Security Bureau made an administrative decision on Shanghai Xuhui District Human Resources and Social Security Bureau for arrears of wages to workers due to unreasonable reasons. October salary. The person subject to execution failed to perform its obligations.

On August 9, 2021, the Human Resources and Social Security Bureau of Xuhui District, Shanghai applied to the court for enforcement. After the court accepted the case on August 11, 2021, it made a ruling to enforce it according to law.

In order to ensure that workers earn their wages, the Xuhui District Court, Procuratorate, and Bureau of Human Resources and Social Security first tried it out, making Xuhui Exchange the first administrative region to implement the policy of advance payment of wage arrears security funds in administrative non-litigation enforcement cases in Shanghai. In August 2022, the three parties jointly issued the "Implementation Plan on Coordinated Implementation of Administrative Non-Litigation Enforcement Cases to Initiate the Advance Payment of Arrears Security Fund". On the one hand, it helps protect the rights and interests of laborers, focuses on people's livelihood, promotes diversified dispute resolution, and truly reflects the temperature of the rule of law; on the other hand, it helps regional governance and the construction of the rule of law, which is an exploration of a new way for judicial administration to serve social governance.

10 Application of reconciliation and bona fide enforcement to administrative non-litigation enforcement cases to help enterprises tide over difficulties——Shanghai Xuhui District Ecological Environment Bureau applied for enforcement of fines of Shanghai XX Auto Repair Service Co., Ltd.

In June 2021, the applicant executor Shanghai Xuhui District Ecological Environment Bureau made an administrative punishment decision, and imposed a fine of 40,000 yuan on the executor Shanghai XX Auto Repair Service Co., Ltd. The person subject to execution failed to perform its obligations.

The executor applied to the court for enforcement of the above-mentioned administrative punishment decision, and the court made a ruling to enforce it according to law after the case was filed on July 1, 2022.

The pioneering application of enforcement reconciliation in administrative non-litigation enforcement cases, for the applicant for enforcement, the administrative decision made by it has been effectively implemented, the specific administrative actions have been realized, and the authority of the administrative agency has been maintained in accordance with the law; for the enforced person, the enterprise Obtaining a certain living space is conducive to the restoration of normal business activities, obtaining certain time and conditions to raise funds, and finally being able to fulfill the obligations of the case; for the court, the case can be closed after the execution is completed, and the case is avoided by terminating the execution procedure. The "cases can't be closed" brought about by it also realizes the social governance function of resolving conflicts and maintains a harmonious and stable business environment.

2022-11-25 11:28

Shanghai Xuhui