Analysis of the Consumer Rights Infringement Case of Zhu Jian v. Harvest Magazine and Shenzhen Xinhua Bookstore, Represented by Our Firm's Lawyers
Lead Counsel:Lawyers1. Case Review
On December 20, 2005, Zhu Jianguo, a member of the Chinese Writers' Association and the plaintiff, purchased a copy of the 2005 sixth issue of *Harvest* magazine at Shenzhen Xinhua Bookstore (Shenzhen Book City). The cover indicated "Chief Editor: Ba Jin," and the magazine contained a loose-leaf subscription advertisement prominently featuring the words "Ba Jin, Chief Editor of *Harvest* 2006." However, upon carefully reading that issue at home, the plaintiff found no works by Ba Jin fulfilling his editorial duties, aside from content mourning the late Mr. Ba Jin. To confirm whether the 2006 *Harvest* magazine would publish works edited by Ba Jin during his lifetime, the plaintiff purchased the first issue of *Harvest* in 2006 on January 23, 2006. After buying it and flipping through, he saw that the copyright page clearly listed Li Xiaolin as chief editor, not Ba Jin. The plaintiff believed that, more than two months after Ba Jin's death, *Harvest* magazine continued to sell under the name "Chief Editor: Ba Jin" and issued "false advertising" to promote the magazine, which was not edited by Ba Jin, constituting blatant consumer fraud. The plaintiff subsequently contacted the *Harvest* editorial office by phone to address the matter, but the other party rudely rejected his legitimate demands, arrogantly telling him, "Come find us through the courts!" They even accused the plaintiff of deliberately seeking publicity and subjected him to personal attacks in public. To protect his rights, the plaintiff specially commissioned...LawyersHe filed a lawsuit against both "Harvest" magazine and Shenzhen Xinhua Bookstore at the Luohu District Court in Shenzhen, requesting that the two defendants make a formal apology and seeking compensation of 5,000 yuan for emotional distress and 5,000 yuan for economic losses.
After accepting the case, the Luohu District Court conducted a sole-judge trial under the simplified procedure, and held a public hearing on March 21, 2006. After the hearing concluded,LawyersThe court found that the originally scheduled trial procedure was unfavorable to the plaintiff, so upon the plaintiff's application, the case was converted from summary procedure to ordinary procedure. After the court approved this change, a collegiate bench was formed on April 28 of the same year, and the case was heard publicly again under the ordinary procedure. After the second hearing in the first instance, the court rendered its judgment [(2006) Shen Luo Fa Min Yi Chu Zi No. 643], rejecting all of the plaintiff's claims. Regarding the contentious issue of "false advertising" debated by both parties, the court of first instance held that it "does not fall within the scope of judicial review by the people's court, and therefore the court will not make a ruling on it." The plaintiff, dissatisfied with the judgment, filed an appeal. The Shenzhen Intermediate People's Court heard the case on August 17 of the same year and issued a final judgment in December of that year, upholding the original judgment. However, the judgment did condemn the defendant's "false advertising" conduct.
II. Media Coverage
Within less than two months after the "Harvest" magazine's "false advertising" incident was exposed on the Century China website in late December 2005, it had garnered over 5,000 comments, with the vast majority of netizens criticizing the magazine's misconduct. After the plaintiff filed the lawsuit, dozens of media outlets across the country reported on the case, and China Central Television covered and discussed it on multiple occasions. The mainstream public opinion expressed support for the plaintiff's lawful rights protection efforts. For instance, on February 20 and 21, 2006, CCTV's Channel 12 legal affairs program aired a special report titled "Taking It Seriously" discussing the "Harvest" magazine's deception of readers. The program interviewed Xu Youyu, a researcher at the Chinese Academy of Social Sciences and an expert on Cultural Revolution history, whose views were highly representative.
An editor-in-chief put together an issue of a magazine, and the content of that issue was to mourn his own death. Logically, this is simply absurd. I think it's utterly ridiculous, a huge joke! Even if they didn't intend it that way, even if what they did is understandable, that still stands.
Other media outlets that reported on the matter include:
On December 24, 2005, Huang Zhe, a reporter from *Huashang Daily*, reported: "After Ba Lao's Death, He Still 'Serves' as Magazine Editor-in-Chief — *Harvest* Accused of Fraud Over 'Ba Jin'."
On February 9, 2006, reporter Chen Jia of Oriental Morning Post reported "Zhu Jianguo sues 'Harvest' for making a mountain out of a molehill?"
On February 10, 2006, Xinmin Evening News reporter Xia Qi reported that "The 'Commemorative Edition' Retaining 'Chief Editor Ba Jin' Is by No Means Fraud."
On February 10, 2006, reporter Zhong Min from Nanjing Morning Post reported "Shenzhen Citizen Sues 'Harvest' for Publishing False Book Advertisement."
On March 22, 2006, Shenzhen Commercial Daily reporters Xu Songlan and Bao Li reported: "Lawsuit Against 'Harvest' Magazine for False Information Consumer Rights Infringement Opened in Court Yesterday."
On March 22, 2006, reporter Zhang Hong of The Beijing News, "Lawsuit Against 'Harvest' for Using Ba Jin's Name in False Advertising Goes to Court";
On March 22, 2006, reporters Chen Xuebin and Xu Wenge from Southern Metropolis Daily published an article titled "Listing Ba Jin as Chief Editor Is a Sign of Respect."
March 29, 2006, "Jinyang Net - Private Economy News" reporter Xiong Wei, "Zhu Jianguo's lawsuit against 'Harvest' heard in Shenzhen," among others.
3. Focus of the case
(I) The plaintiff asserts that the defendant's infringement is a fact.
The plaintiff argues that the defendant's labeling of "Chief Editor: Ba Jin" on the cover of the sixth issue in 2005, as well as in the loose-leaf advertisement accompanying the issue promoting the 2006 edition of *Harvest* magazine, clearly disseminated false information to the plaintiff, Zhu, and the broader readership. The defendant, *Harvest* magazine, countered that this was a deliberate act to commemorate Mr. Ba Jin, which the plaintiff contends further demonstrates their intentional deception of consumers, causing harm to Zhu's rights as a questioning consumer and leading readers to mistakenly believe that Ba Jin had already completed editing the first issue of *Harvest* for January 2006 before his death. Furthermore, the defendant noted "Chief Editor: Li Xiaolin" on the first issue of January 2006, effectively contradicting and negating the false information they had previously released. This fully proves that the "Chief Editor: Ba Jin" designation on the cover of the sixth issue of *Harvest* in 2005 and in the loose-leaf advertisement was false information.
(ii) The defendant believes the plaintiff is putting on a show.
The defendant contends that this case has been artificially hyped up. On the merits, since the plaintiff has filed a lawsuit alleging fraud, he must identify whose tortious conduct caused the harm to him. However, I believe no tortious act exists. As for the consequences of the alleged tort, I maintain that the plaintiff's claimed deception is fabricated and feigned. The plaintiff's lawsuit is a personal publicity stunt under the guise of "defending Ba Jin." The plaintiff has no right to position himself as a spokesperson for the public and unilaterally file a lawsuit on behalf of others.
4. Lawyer's Opinion
The plaintiff Zhu Jianguo's entrusted attorneyLawyersIn an interview with a reporter from Shenzhen Business Daily, analyze the underlying real causes and positive significance of this case.
(i) The prominent manifestation of cultural hegemony formed by the combination of administrative hegemony and cultural celebrities.
The deep-rooted real cause of this case is the cultural tyranny and hegemony that has long existed in the cultural circles, formed by a combination of administrative power and cultural celebrities, and is prominently manifested in the defendant. It has been exposed and brought to light today with the passing of Ba Jin. At the same time, it has also been revealed thanks to the plaintiff's sense of justice and perseverance—this is the deeper truth behind it. Today, China has long since entered the market economy era of the 21st century, yet the defendant still clings to bureaucratic officialdom, treating the relationship between editor and reader, which should be one of complete equality, as an unequal superior-subordinate dynamic. They disregard readers' rights, treat national law as a game, wrap themselves in the flag of authority, and use Ba Jin's renowned name and the prestige of the Shanghai Municipal Party Committee's Propaganda Department to look down upon others and bully the weak from a position of power!
(ii) Promoting the improvement of law-abiding standards in China's cultural sector.
The significance of this lawsuit is clearly very positive, even a feat of typical and representative importance. It is not only seeking justice for the individual but also performing a public service for the common good. To a certain extent, it will inevitably promote the improvement of legal compliance within China's cultural sector. We have reason to believe that the plaintiff's litigation will play a positive role in combating cultural hegemony and eliminating cultural dominance.
(iii) Enhance citizens' legal awareness and awareness of rights protection.
The plaintiff, as an individual of modest stature and a mere scholar, dared to confront the defendant—a powerful collective with a long-standing reputation and official backing. Breaking through the long-held Chinese tendency of passive submission and acquiescence to authority, the plaintiff refused to bow to power, faced difficulties without fear, and disregarded concerns over reputation or criticism. Through numerous setbacks and with unwavering perseverance, the plaintiff, after being flatly rejected in negotiations with the defendant, resolutely took up the legal weapon and brought the case before the court, seeking accountability and justice. This act holds tangible and positive practical significance in enhancing citizens' legal awareness and rights-protection consciousness, as well as in fostering a harmonious society. The plaintiff's meticulous and principled "stubbornness" in combating counterfeit cultural products—conduct that is law-abiding, lawful, and law-upholding—deserves legal affirmation and support, and should be encouraged and commended by society.
(Compiled and annotated by Zheng Fengdan)
Appendix: Comments by Some Scholars and Experts on the "Harvest" Magazine Case
— Excerpted from "Six Key Points of the Debate in the 'Harvest' Case," Blog House
I. Xu Youyu, a research fellow at the Chinese Academy of Social Sciences, appeared on CCTV's legal channel (Channel 12) program "Everyone's View" at 12:30 on February 21, 2006, in a 20-minute special report titled "Being Particular," discussing the "Harvest deceives readers" incident. During the discussion, Xu Youyu said: In recent days, I have been following the "false advertisement by Harvest" incident every day. This is a scandal that embarrasses Harvest greatly, and it is utterly absurd! First, the "Special Issue in Memory of Ba Jin" (2005, Issue 6) was labeled as "edited by Ba Jin," which was already absurd enough. Then came the false advertisement claiming "Ba Jin continues to serve as editor of Harvest for 2006," which is even more ridiculous! It is too dramatic! This is an insult to the vast readership! Once this was exposed, there was no need for a lawsuit; it was enough to make Harvest feel deeply ashamed. The rights and wrongs of this matter are already perfectly clear. Harvest's failure to apologize reveals a problem with its standards. As a result of this incident, Harvest is now a weak party lacking justification, but it should still admit its mistake and apologize. If it insists on not admitting fault, then it has become so foolish as to be intolerable! If I had known about this earlier, I would certainly have exposed it too! Although I might not necessarily file a lawsuit. Harvest should now issue a written "correction." This matter is too absurd! I do not advocate "beating a drowning dog," but if Harvest remains arrogant and refuses to apologize, it will only force people to take legal action. Even if a bureaucratic institution had done such a thing, it would be indefensible, yet Harvest has done even worse than a bureaucratic institution. For example, if a mayor died yesterday, and today you report that he is still presiding over work, wouldn't that be ridiculous?! Even a bureaucratic institution wouldn't make such a joke, so how could intellectuals do such a thing?! Harvest is too foolish; this is a stupidity that makes the whole nation laugh out loud!
II. Dr. Teng Biao, Lecturer at China University of Political Science and Law. On March 19, 2006, Dr. Teng Biao, a lecturer at China University of Political Science and Law, wrote a "legal analysis" to the plaintiff regarding the "Harvest" case.
The defendant, knowing that Ba Jin had passed away, still used the title "Chief Editor: Ba Jin" on the magazine, which constitutes an act of deliberate intent.
The defendant admitted in their statement of defense, "It was indeed intentional on our part, a special way for our colleagues to express their reverence for Mr. Ba Jin and to commemorate him. We could not bear to see Mr. Ba leave us, feeling that although he has passed, he lives on, his words still echoing in our ears, his presence still beside us." This also confirms the point. Such a defense is not worth refuting.
After Mr. Ba passed away, the defendant continued to use the title of "Editor-in-Chief" on the magazine, which is an indisputable fact and constituted deception toward readers, including the plaintiff. The fact that the plaintiff and other readers were not deceived because they knew of Ba Jin's death does not negate the defendant's intentional provision of false information.
The plaintiff's academic research on Ba Jin's thoughts does not affect his right to assert his position as a reader. The defendant's claim that "the plaintiff has neither any rights nor any authority over the editorial and managerial affairs of *Harvest* magazine" is unjustified. By purchasing *Harvest* magazine, the plaintiff entered into a contractual relationship with the magazine, making them equal civil subjects. The plaintiff certainly has the right to file a lawsuit against the defendant's deliberate use of false information.
Legal basis may also refer to: Article 68 of the Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China (for Trial Implementation): Where one party intentionally informs the other party of false information, or intentionally conceals the true situation, inducing the other party to make an erroneous expression of intent, it may be determined as fraudulent conduct.
III. Gu Zexu, a Shanghai-based civil rights legal expert. On February 9, 2006, Gu Zexu, a Shanghai civil rights legal expert, posted a statement on the Century Academy website titled "My Interview with Yangcheng Evening News Regarding Zhu Jianguo's Lawsuit Against Harvest Magazine" —
(i) My basic stance: Zhu Jianguo's lawsuit against Harvest magazine is justified.
(2) Zhu Jianguo is legally on solid ground:
1. Zhu Jianguo, from a consumer's perspective, filed a lawsuit against two defendants, Shenzhen Xinhua Bookstore and the magazine "Harvest," with purchase invoice evidence and the commodity (the magazine) as proof, and the legal relationship is clear. Zhu Jianguo initiated the lawsuit from the angles of the "Consumer Rights Protection Law" and the "Advertising Law," and the legal path he followed is also correct.
2. Zhu Jianguo's demand for emotional distress compensation is merely symbolic and cannot be fully substantiated in legal terms. Zhu Jianguo did not seek medical treatment for mental harm due to feeling deceived, nor was he diagnosed with a mental illness or a related condition, and he lacks corresponding evidence to support such a claim.
Third, the explanation previously disclosed by the media from Harvest magazine, stating that the 2005 sixth issue and the loose-leaf advertisement were printed while Ba Jin was alive, cannot constitute grounds for exemption from liability. First, although the 2005 sixth issue of Harvest still lists Ba Jin as editor-in-chief, Ba Jin could not have convened an editorial meeting to mourn himself while he was alive, nor could he have overseen articles mourning his own death. Second, even if the 2006 loose-leaf subscription advertisement was printed while Ba Jin was alive, once Ba Jin passed away, Harvest magazine, as a production and operating entity of a commodity (the magazine), could not distribute what had in fact become false advertising materials merely to save on advertising costs. This is because, for consumers, they must purchase and receive commodities and advertisements that contain truthful information; the difficulties of an enterprise are irrelevant to consumers, and an enterprise cannot shift its own difficulties onto consumers simply because it faces them.
4. There are comments online defending the magazine "Harvest," but so far I have not seen a single argument that can truly hold up legally.
(III) The case of Zhu Jianguo v. Harvest Magazine is significant:
First, this serves as a catalyst for our country's organizational and personnel systems. With Ba Jin's passing, the magazine *Harvest* operates as a commodity production and business entity catering to consumers. Organizational and personnel work must keep pace promptly, without clinging to outdated notions that *Harvest* is merely a literary propaganda piece, and thus failing to appoint a new editor-in-chief in a timely manner.
2. Even if the Organization Department, Propaganda Department, and personnel departments fail to keep pace with the work in a timely manner, it is still not impossible for *Harvest* magazine to take action on its own. Although it is compelled to continue presenting the name "Chief Editor Ba Jin," it must be enclosed in a black border, thereby clearly informing consumers through this customary practice in the cultural industry that "Chief Editor Ba Jin" is merely a form of honor and carries no practical significance. This case serves as a wake-up call for raising the standard of editorial work in our country.
3. Be cautious when leveraging celebrity influence; times have changed, and more people are now legally conscious.
4. The above pertains to the significance of the case itself. Its broader implications are far-reaching, which I am unable to elaborate on.
4. Jiang Zijun, a well-known media commentator. On March 23, 2006, The Beijing News published a commentary signed by Jiang Zijun titled "Respecting Mr. Ba Jin Requires at Least Respecting the Facts" — the article stated:
The behavior of the magazine *Harvest* is suspected of violating the current laws and regulations of our country. Clearly, after Mr. Ba Jin's passing, he could no longer fulfill the duties of editor-in-chief, and it is certainly problematic to continue listing Ba Jin as the editor-in-chief on the magazine. Mr. Ba Jin himself was always deeply averse to the so-called celebrity effect. He not only repeatedly stated in various settings, "I am not a celebrity, nor do I want to be one," but also firmly refused and opposed the construction of a "Ba Jin Former Residence" and the establishment of awards or foundations in his name. Therefore, in this sense, commemorating Mr. Ba Jin should precisely involve respecting the facts and respecting the readers, which would align with Mr. Ba Jin's consistent character of "speaking the truth."
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