Essentials of DecisionAccording to the provisions of Article 88 of the Civil Procedure Law (i.e., the current Civil Prosecution Law, Article 91), if there is a difficulty in direct service of process, it may be served by mail. Article 2 of the Provisions on the Service of Documents by Mail by Court Special Delivery stipulates that, if civil litigation documents are served by mail by court special delivery, their service shall have the same legal effect as service by the People's Court. The court mailed to the served company, including the summonses, including the address of its business registration, with the legal effect of publicity, the materials have been signed by the company employees, so the court's service is legally effective. //
Supreme People's Court of the People's Republic of China
Civil Judgment
(2019) Supreme Court of China Zhi Minzhen No. 500
Appellant (the appellant) has been served by the court. strong>Appellant (defendant in the original trial): Dongguan Crayfish Electronic Technology Co. Residence: Tangxia Town, Dongguan City, Guangdong Province, Putxin Lake Community, No. 240 West Huanshi Road, Xinda Business Building A710-A711.
Legal representative: Lv Yumei, the company's financial director.
Appointed Litigation Agent: Zheng Shaoxie, Hunan Bafang Law Firm lawyers.
Appellee (plaintiff): Qufu City, the bottom of the education technology Co. Residence: Qufu City, Shandong Province, No. 25 Shengdu Shopping Center.
Legal representative: Xu Bing, general manager of the company.
Appointed litigation agent : Kong Fansheng, Shandong Qu Sheng Di Law Firm lawyers.
The appellant, Dongguan Crayfish Electronic Technology Co., Ltd (hereinafter referred to as Crayfish Company), appealed to this Court against the (2019) Guangdong 73 Zhi Minchu No. 75 Civil Judgment rendered by Guangzhou Intellectual Property Court on July 19, 2019 for the case of the computer software development contract dispute with the appellee, Qufu Underlying Education and Technology Company, Ltd (hereinafter referred to as Underlying). After the case was filed on September 23, 2019, the Court formed a collegial panel in accordance with the law and held a public hearing on November 13, 2019, in which Zheng Shaoxi, the appointed litigation agent of the appellant Crawfish Company, and Xu Bing, the legal representative of the appellee Bottomless Company, and Kong Fansheng, the appointed litigation agent of the appellee, appeared in court to participate in the litigation. The case is now concluded.
Small lobster company appeal request: revoke the original judgment, change the judgment to reject all the underlying company, and the underlying company to bear the litigation costs of the first and second instance. Facts and reasons for: (a) crawfish company did not participate in the original trial because it did not receive the trial court by mail the summons to the hearing and respond to the material. The trial judgment contained Crawfish Company on February 16, 2019 signed receipt of court-responsive materials is not true, the legal representative of the Crawfish Company did not receive a call from the courier, the company's employees at the receiving and dispatching post and other employees did not receive the above materials or was notified by the trial court to participate in the litigation. (b) Crawfish Company does not have a breach of contract. The parties signed the "Agreement" of Annex I "function book" the first part of the agreement: "Note: the above should be achieved for the main functions, but not must be completely consistent with the above description. The development process of both sides can then specifically consult whether changes, as long as the Party agrees, otherwise the above description shall prevail", crawfish company and the bottom of the company in the second prototype development has been on the product features and development of difficult points and other issues of full consultation and reached agreement, crawfish company delivered the product is recognized by both sides of the negotiation, and therefore there is no breach of contract.
Underlying company argued: (a) crawfish company argued did not receive the original trial summons, inconsistent with the facts. On the eve of the trial, the trial court has notified the crawfish company by phone, crawfish company since the domicile can receive the trial judgment, should also receive the trial summons. (B) the crawfish company that has been on the secondary prototype of the primary and secondary functions of communication, has reached agreement, this statement is wrong, the two sides did not reach any agreement. Request to reject the appeal and affirm the original judgment.
The underlying company to the trial court sued for: 1. the dissolution of the underlying company and crayfish company signed the "strategic cooperation agreement" (hereinafter referred to as the agreement); 2. the crayfish company to the underlying company to return the 165,000 yuan and pay the overdue interest (from February 6, 2018 until the actual date of payment, calculated according to the People's Bank of China during the same period of the lending interest rate); 3. the crayfish The company bears the litigation costs of this case. Facts and reasons: on February 3, 2018, the underlying company and the crawfish company signed the Agreement, agreed that the crawfish company for the underlying company research and development and production of educational robots, research and development cycle for 60 working days, the total cost of 230,000 yuan. The underlying company first paid 50% of the amount of $115,000, and then the crawfish company claimed that the funds were tight, and the underlying company paid another $50,000. Crawfish Company only provided the first sample in early May 2018, which was tested and did not meet the requirements, and after the underlying company put forward modifications, Crawfish Company provided the second sample at the end of November 2018, which still did not meet the contractual requirements. Both parties began to communicate repeatedly, but Crawfish Company engaged in excuses, claiming that it needed time. The underlying company believed that Crawfish Company did not provide qualified products within the agreed period of time, which prevented the underlying company from realizing the purpose of the contract, and according to the agreement, Crawfish Company should refund the amount paid by the underlying company.
The trial court found the facts: on February 3, 2018, the underlying company (as party A) and crayfish company (as party B) signed a "letter of agreement" agreement, the two sides **** with the development of the "learning robot" market, party A put forward "a kind of educational robots to help students to improve their interest in reading and reading effect detection", party A proposed "a help students to improve reading interest and reading effect detection". Party A proposes the idea of "an educational robot that helps students to improve their reading interest and test their reading effect" (hereinafter referred to as the product), and entrusts Party B with the development and OEM; Party B's work includes ID/MD design, motherboard, UI design and software integration, mold development, product production, as well as the product's supporting boxes and manuals; the product's performance, functions, and parameters are based on the "Product Primary and Secondary Functions" agreed by the two parties. The performance, functions and parameters of the product shall be subject to the "major and minor functions of the product", and the quality of the product shall be subject to the "product quality" agreed by both parties; the research and development cost (including appearance, structure and interface design, motherboard, software integration, etc.) shall be 100,000 RMB, the mold cost shall be 120,000 RMB, and the APP development cost requested by Party A shall be 10,000 RMB. Total 230,000 yuan, Party A will pay 50% to Party B first, i.e. 115,000 yuan, after Party B completes the design of appearance, finalization, assisting Party A in completing the application for design patent, and after all the functions have been tested and realized on the prototype and confirmed by Party A, Party A will pay off the rest of the 50%, i.e. 115,000 yuan; the product development cycle is 60 working days; Party B shall complete the product development in accordance with the contents as stated on the attached document, Party B shall complete the development of the product in accordance with the content, function and quality set out in the attachment and achieve mass production. If the content, function and quality set out in the attachment are not achieved, both parties shall negotiate and solve the problem with a cooperative attitude and strive to reach an agreement, if the agreement cannot be reached in the end, Party B shall return the money paid by Party A. The Agreement contains two annexes, namely, the Book of Major and Minor Functions of Products (hereinafter referred to as the Book of Functions) and the Book of Product Quality. The "Function Book" states that the product should have four main functions, including: 1. game-like "reading test" function; 2. questioning function; 3. dictionary function, including students in the process of reading, encountering words and phrases that they do not know, can tell the robot by voice, the robot will be able to tell the students by voice the pronunciation and meaning of the words, and appear on the screen. meaning and appear on the screen; 4. Pet growth function. The product should have 43 secondary functions (including interface expression, voice, dialog record, picture book recognition, micro letter call, on-demand push, check the weather, voice memory, etc.).
On December 1 and December 7, 2018, Crawfish issued receipts to Implicit, which showed that it received $20,000 and $145,000 from Implicit for research and development, *** totaling $165,000.
At the trial, Implicit submitted two products, claiming that they were samples delivered by Crawfish in May 2018 and November 2018, respectively. The technician of the underlying company operated and demonstrated the second sample it claimed in court. Upon comparison with the agreed primary functions, the demonstration results showed that the product did not display the "reading test" function, did not have the questioning function, and had dictionary content on the sample, but was not capable of communicating by voice. Comparison with the agreed secondary functions, the product does not show the functions of items 7 and 8, i.e., the interface does not show the image of the hah hare, and there is no "hah" sound of laughter, the product does not have the function of recording the conversation of item 13, does not have the function of recognizing the picture books of item 15, does not have the function of microblogging call of item 22, does not have the function of on-demand push function of item 26, does not have the function of checking the weather by voice of item 28. There is no item 28 voice query weather function, and there is no item 30 voice memory function. It was also found that the trial court served the case complaint and other responsive materials to Crawfish Company by court special delivery, and Crawfish Company signed for the foregoing documents on February 16, 2019.
The trial court found that the case is a computer software development contract. Crawfish Company did not appear in court to participate in the litigation after being legally summoned by the court, which should be regarded as a waiver of the right to defend and cross-examine the facts stated and evidence provided by Bottom. The trial court after review, the underlying company and crawfish company signed the "agreement" is the true meaning of the two sides, legal and effective. The case needs to determine the issue is: whether the "Agreement" should be terminated due to the existence of a breach of contract Crawfish Company; Crawfish Company's civil liability how to determine. (A) on whether the Agreement should be terminated due to the Crawfish Company's breach of contract. The underlying company claimed that due to the crawfish company's breach of contract, resulting in its inability to achieve the purpose of the contract, requesting the termination of the Agreement. According to the underlying company and the crawfish company signed the "agreement" agreement, the crawfish company should be within 60 working days to develop products in line with the "agreement" in the annex to the "function of the book" function. As demonstrated in court at the trial, the products provided by Crawfish to Implicit were missing three of the four primary functions and at least eight of the 43 secondary functions. In other words, the products delivered by Crawfish did not comply with the contract. Crawfish Company was in breach of contract, resulting in the failure to realize the contractual purpose for which Embedded Company had requested the development and mass production of the product. The trial court supported the request of the company to terminate the contract. According to Article 96 of the Contract Law of the People's Republic of China, the Agreement was terminated on the day following the date of service of the indictment on the Crawfish Company. (B) on the crawfish company's civil liability how to determine the issue. According to the provisions of Article 97 of the Contract Law of the People's Republic of China, after the dissolution of the contract, has not been performed, terminate the performance; has been performed, according to the performance and the nature of the contract, the parties may require the restoration of the original state, to take other remedial measures, and have the right to claim compensation for damages. According to the Agreement, if the products provided by the Crawfish Company fail to meet the functional requirements set out in the Book of Primary and Secondary Functions of the Products, and no agreement can be reached after negotiation, the Crawfish Company shall refund the payment made by the Underlying Company. Now the circumstances agreed in the contract, the underlying company requires the crayfish company to return the paid 165,000 yuan, in line with the contract, the trial court to support. In addition, after the termination of the contract, the interest fruits during the period of occupation of the relevant money by Crawfish Company is the loss of the underlying company, and Crawfish Company should be paid together. The underlying company's request to calculate the relevant interest loss from February 6, 2018 lacked basis, and the trial court found that the relevant interest loss should be calculated from the next day of contract termination, i.e., February 18, 2019, with reference to the People's Bank of China's benchmark interest rate for loans for the same period of time.
In summary, the trial court ruled that: firstly, the Agreement signed between the Underlying Company and the Crawfish Company on February 3, 2018 was dissolved on February 17, 2019; secondly, the Crawfish Company shall, within ten days from the date of the legal effect of the judgment of the trial, return RMB 165,000 to the Underlying Company and pay the relevant interest (with RMB 165,000 as the principal amount from February 18, 2019) from February 18, 2019 with reference to the People's Bank of China's benchmark interest rate for loans in the same period until the date of actual liquidation); 3. Rejecting the other litigation requests of Underlying Company. The case acceptance fee of 3600 yuan shall be borne by the crawfish company.
The court during the second trial, both parties did not submit evidence, the original review of the facts are basically true, the court will confirm.
This court believes that the focus of the controversy in this case is: the trial court on the crawfish company to serve the summons to the court is lawful; Crawfish company constitutes a breach of contract.
According to the provisions of Article 88 of the Chinese People's **** and National Civil Procedure Law, if there is difficulty in serving litigation documents directly, they may be served by mail. The supreme people's court on the court special delivery of civil litigation documents by mail, article 2 of the provisions of the court special delivery of civil litigation documents by mail, its service and the people's court service has the same legal effect. The court of first instance to the crayfish company by mail, including the summons to the court proceedings, including the address for the town of Tangxia, Dongguan City, Putxin Lake community, No. 240, West Huanshi Road, Xinda Business Building, A710-A711, the address of the crayfish company's industrial and commercial registration has the effect of the statutory public, the materials have also been signed by the name of the respondent. "Wang Heting" individual signature. The second trial hearing, the crawfish company appointed litigation agent to confirm that Wang Hai Ting is the crawfish company sales staff. The trial judgment was also mailed to the above address and successfully served, so the trial court's service of the summons to the Crawfish Company to open the trial was legal and valid.
The trial court demonstration showed that the prototype provided by Crawfish Company to the bottom of the company for the second time was compared with the "Agreement" in Annex I, "Functionality Book", the prototype is missing 3 of the 4 major functions, at least 8 of the 43 minor functions. Crawfish company in the second trial hearing of the above facts are not disputed, but that it and the underlying company in the second prototype development has been on the product features and development of difficult issues such as full consultation and has reached agreement, the second delivery of the underlying company's prototype is recognized by the two sides of the negotiation, there is no breach of contract. But in this case, the crayfish company did not put forward evidence to prove its claim, so the defense of the crayfish company this court does not support.
In summary, the Court finds that the crayfish company's reasons for appeal and request can not be established, not supported. The trial judgment is clear, the applicable law is correct, should be upheld. In accordance with the provisions of article 170, paragraph 1, subparagraph 1 of the Chinese people's *** and national civil procedure law, the judgment is as follows:
Reject the appeal and affirm the original judgment.
The second instance case acceptance fee of 3600 yuan, by the dongguan crawfish electronic technology co.
This judgment is final.
Registrar Cen Hongyu
Registrar Zhou Ping
Registrar Zhang Hongwei
November 25, 2019
Judicial assistant Liu Baiyu
Registrar Xing Yuan
Source: civil trial