[5] I. Case Background

In January 2001, Shenzhen Tianhong Department Store Co., Ltd. launched a promotional event titled "Infinite Sincerity, Buick Welcomes Spring," offering a lottery ticket for every 200 yuan spent, with the top prize being "lifetime use of a Buick." On January 20, Mr. Zhang Junyang spent 344 yuan at the company's Shennan branch and received one lottery ticket. On January 29, the day of the drawing, Mr. Zhang went to the store to claim his prize, but the service desk clerk found that his ticket had a blank number, making it invalid for redemption. This led to a dispute between the two parties. After multiple negotiations and failed mediation, Mr. Zhang, on February 21, entrusted us, Guangdong Zhiming Law Firm, to file a civil tort lawsuit against the store, seeking compensation for direct and indirect losses totaling 100,000 yuan (comprising three parts: ① one-year usage fee [rental] for a Buick: based on Shenzhen's rental market for similar models at 7,800 yuan/month, the annual rent would be 7,800 x 12 = 93,600 yuan; ② attorney fees: 2,000 yuan; ③ lost wages, transportation, and other losses: 4,400 yuan; totaling 100,000 yuan). This incident garnered widespread media attention nationwide, especially coverage by CCTV's "Today's Legal Report" and "Life" programs. Although Mr. Zhang won the case after a second-instance trial, he remains dissatisfied with the verdict and is currently appealing.

2. Dispute Controversy

Mr. Zhang's main argument: The store promised a promotional sales event with prizes, so it should have delivered valid lottery tickets with complete and essential information and ensured consumers' right to redeem prizes. Due to the store's negligence or intentional fraud, he incurred shopping expenses and lost the chance to win, severely infringing on his legitimate economic rights.

The store's main argument: 1. This case involves a contractual relationship; Mr. Zhang had a duty to verify the ticket but failed to do so, thus bearing corresponding responsibility. 2. The "chance to win" a Buick did not exist because the winning numbers were drawn randomly; whether the specific number existed did not affect the drawing, and the winning number was actually redeemed. 3. There is no legal basis for valuing the "chance to win" a Buick, and the ticket itself has no face value.

Some lawyers' views: 1. This case should be filed as a contract dispute, seeking compensation under the breach of contract provisions of the Contract Law, rather than as a civil tort. 2. The "chance to win" in this case has no direct legal provisions and cannot be determined.

III. Judgment

On April 12, 2001, the Shenzhen Futian District People's Court ruled in the first instance that the defendant's promotional sales event constituted unfair competition. The lottery tickets issued by the defendant had no face value, and the grand prize and lucky draw prizes were determined by random number selection, with two grand prize winners and 12 lucky draw winners already redeemed. Therefore, the plaintiff's claim for 100,000 yuan in compensation based on winning the grand prize lacked factual and legal basis and was not supported by the court. Given that the defendant failed to provide a complete lottery ticket to the plaintiff and bore some fault for the dispute, the court ordered the defendant to bear a portion of the case acceptance fee. Accordingly, the court dismissed all of Mr. Zhang's claims. Dissatisfied, Mr. Zhang appealed to the Shenzhen Intermediate People's Court on April 26, 2001. On June 28, 2001, the Shenzhen Intermediate Court issued a final judgment, holding that the appellee, Shenzhen Tianhong Department Store Co., Ltd., organized a promotional sales event, publicly announced the distribution of lottery tickets, drawing methods, prize settings, and redemption times, which constituted a service commitment to customers. When customers spent 200 yuan, the store and its branches were obligated to issue lottery tickets as agreed and ensure equal drawing opportunities for ticket holders. In this case, the appellant, Mr. Zhang Junyang, after shopping at the Shennan branch, was entitled to one lottery ticket as agreed, but the store issued a blank-numbered ticket, causing him to lose the chance to win. The appellees' failure to fulfill the ancillary obligations under the sales contract infringed on the appellant's right to a chance to win. This right to a chance to win is not equivalent to the property rights protected by the General Principles of the Civil Law of the People's Republic of China, and the law has no specific provisions for this situation. However, given the appellees' fault and the appellant's difficulty in proving and calculating losses from losing the chance to win, the court, considering the probability of winning, the total prize amount set by the appellees, and the overall case circumstances, determined the compensation liability based on the principle of fairness. The first-instance court correctly found the facts but improperly applied the law and made an inappropriate ruling. Pursuant to Article 153, Paragraph 1, Items 2 and 3 of the Civil Procedure Law of the People's Republic of China, and Article 4 of the General Principles of the Civil Law of the People's Republic of China, the judgment is as follows: 1. Revoke the civil judgment of Shenzhen Futian District People's Court (Shen Fu Fa Min Chu Zi No. 810); 2. The two appellees, Shenzhen Tianhong Department Store Co., Ltd. Shennan Branch and Shenzhen Tianhong Department Store Co., Ltd., shall jointly compensate the appellant, Mr. Zhang Junyang, 200 yuan; 3. The first- and second-instance case acceptance fees of 200 yuan shall be borne by the appellant, Mr. Zhang Junyang, in the amount of 100 yuan, and by the two appellees, each in the amount of 50 yuan.

IV. Attorney's Arguments

(A) Erroneous Views of the Mall and Certain Lawyers:

1. They believe this case should be litigated as a contract dispute or falls under contract dispute litigation, which is inconsistent, unsuitable, or incorrect given the circumstances of this case. We cannot deny that, as this is the first nationwide case of consumer infringement involving blank prize coupons without precedent, it is indeed difficult to find specific legal provisions to pursue civil tort liability. Nevertheless, this does not prevent us from finding relatively specific and sufficient grounds based on explicit laws such as the General Principles of Civil Law and the Consumer Protection Law. In this case, where both contract litigation and tort litigation are possible, and in accordance with Article 122 of the Contract Law regarding the option to choose, we have carefully considered and decided to file a civil tort lawsuit based on the following correct reasons: We believe that if it were treated as a contract dispute, Mr. Zhang would inevitably bear the duty to review, verify, and confirm the contract terms, and any negligence in such review would also incur liability. Without conclusive evidence proving the mall intentionally created the blank coupons, it is likely that both parties would share equal responsibility, leading to no liability for the blank coupons. Since the blank coupon contract lacks key elements and is invalid due to non-performance, the mall's liability for breach of contract cannot be unilaterally pursued. Without liability for breach of contract, Mr. Zhang would have no right to claim liquidated damages. Moreover, even if he suffered substantial direct material losses, the mall would have no obligation to compensate. However, when this case is pursued as a civil tort lawsuit, although it is difficult to find direct specific legal provisions for reference, it has the following two advantages: ① It facilitates the clarification of fault liability in civil torts; ② For fault liability, at least the basic principles of the General Principles of Civil Law can be invoked to require the at-fault party to bear tort liability for compensation, and the current Consumer Protection Law also provides further specific provisions as a basis.

2. Whether the "opportunity to win" truly exists is not predicated on the factual outcome after depriving the rights holder, Mr. Zhang, of his chance to participate in the lottery. The mall's view is a typical case of putting the cart before the horse, reversing cause and effect, and committing a clear and serious logical error. Furthermore, regardless of whether Mr. Zhang would ultimately win a prize or even if it were certain he would not, his right to participate in the lottery cannot be deprived in advance. 3. Although there is no explicit legal provision to directly determine the value of the "opportunity to win," this does not mean that its value does not exist at all, nor does it mean that its value cannot be determined at all, because this case involves the "lifetime right to use a Buick." Therefore, the main item in Mr. Zhang's claim for compensation is the usage fee (i.e., rental fee standard) for the Buick. Considering the mall's actual financial capacity and the principle of reasonableness in civil law, he claims compensation for one year's usage fee, which is entirely reasonable and lawful.

(B) Errors in the Court's Judgment:

1. The first instance erroneously held that "the lottery coupons issued by the defendant have no face value." This determination severs the intrinsic connection between things and views the issue in isolation and stasis, which is highly erroneous. The so-called "face value of the coupon" should not be conflated with the value of the coupon. That is, an item "without face value" does not necessarily lack value. A lottery coupon is a certificate of rights issued by a merchant, linked to certain foreseeable material benefits. When a coupon is effectively invalid due to the absence of key elements, the merchant fails to fulfill its promise of providing the coupon to the consumer, depriving the consumer of the potential right to win, thereby constituting infringement.

2. Final judgment errors: ① Since it was determined that the appellee's infringement was wrong, the fair principle was incorrectly applied in the judgment, completely ignoring the appellant's claim for compensation due to the appellee's infringement, merely stating that "the right to a winning opportunity cannot be equated with the property rights of citizens protected by the General Principles of the Civil Law of the People's Republic of China, and the law has no specific provisions for this case" and "the appellant objectively finds it difficult to provide evidence and calculate the losses caused by the loss of the right to a winning opportunity" to blatantly evade and conceal the past. Moreover, even the appellant's more reasonable, specific, and legally grounded claims for direct material losses such as transportation expenses and lost work time due to the infringement were not awarded. Even more erroneous: to demonstrate the correctness of applying the fair principle in the judgment, the original judgment split the litigation costs of both the first and second instances equally between the appellant and the appellee. How can such a judgment that confuses right and wrong reflect civil punishment for the appellee's wrongful conduct?! ② Although this case is the first nationwide consumer infringement case involving empty lottery ticket numbers, with no specific legal provisions for claims, relevant articles of the General Principles of the Civil Law of our country are still complete and clear. Since the final judgment again confirmed that the appellee's conduct was indeed wrongful, why does it still refuse to apply the principle of fault liability in the judgment, instead incorrectly applying the fair principle? This is clearly an error in the application of law. In fact, although the "right to a winning opportunity" is not directly equivalent to citizens' property rights, the material property content it contains is undeniable; it merely manifests as an uncertain, anticipated property right, a new phenomenon under market economy conditions and a derivative variation of past common civil disputes. Although the specific circumstances of the case are novel, the legal principles and reasoning are no different. Therefore, according to the relevant laws and regulations of our country, such as the Constitution and the General Principles of the Civil Law, the People's Court should have sufficient reasons to exercise its judicial discretion to make a fair, reasonable, and lawful determination and ruling on this case, and should never tie its own hands for any reason, leading to unfair law enforcement and erroneous judgments.

In summary, this case is a typical wrongful case. The ancient sages of our country said: Do not do evil because it is small, and do not neglect good because it is small. Similarly, although this case is a civil dispute arising from daily trivial matters, the People's Court should still enforce the law seriously and treat it with due diligence. Matters, whether big or small, must be punished according to law if they violate the law and are wrongful. The General Principles of the Civil Law of our country clearly stipulate the principle of fault liability. Since the appellee in this case is at fault and has caused the appellant significant direct material losses and substantial indirect losses (material rights losses), the People's Court should, according to law, apply the principle of fault liability to rule that the appellee bears the direct material losses and corresponding indirect material rights losses suffered by the appellant due to the infringement. It should never absurdly use the so-called "fair principle" to render a confused judgment in this case, thereby further legally harming the appellant's legitimate rights and interests. Such a judgment both "damages" the seriousness of the law and "harms" the appellant's legitimate rights and interests. For this erroneous judgment that defies reason and violates the law, our firm's lawyer is now again voluntarily assisting the appellant, Mr. Zhang, in filing a lawful appeal, strongly urging the relevant People's Court to take his appeal seriously, conduct a fair retrial of this case according to law, and restore justice to the law!

(Wang Tengfeng's Commentary)

Zhiming Office

December 19, 2001