【Lead Attorney: Wang Tengfeng】I. 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 subscription advertisement prominently featuring the words "Chief Editor Ba Jin's 2006 *Harvest*." However, upon returning home and carefully reading the issue, the plaintiff found no works completed by Ba Jin in his capacity as chief editor, aside from content mourning Mr. Ba Jin. To confirm whether the 2006 *Harvest* magazine published works edited by Ba Jin during his lifetime, the plaintiff purchased the first issue of 2006 *Harvest* on January 23, 2006. Upon flipping through it, he noticed the copyright page clearly listed the chief editor as Li Xiaolin, not Ba Jin. The plaintiff believed that selling *Harvest* magazine under the name "Chief Editor Ba Jin" more than two months after Ba Jin's death, and issuing "false advertisements" to promote *Harvest* not edited by Ba Jin, constituted blatant consumer fraud. The plaintiff contacted *Harvest* magazine by phone to address the issue, but the other party rudely rejected his legitimate demands, arrogantly telling him to "come to us through the court!" and even accused him of deliberate sensationalism, launching personal attacks in public. To protect his rights, the plaintiff specially entrusted lead attorney Wang Tengfeng to sue both *Harvest* magazine and Shenzhen Xinhua Bookstore in the Shenzhen Luohu District Court, requesting an apology from the two defendants and compensation of 5,000 yuan for mental distress and 5,000 yuan for economic losses.

After accepting the case, the Luohu District Court assigned a single judge to conduct a trial under summary procedures, holding a public hearing on March 21, 2006. After the hearing, lead attorney Wang Tengfeng found that the court's originally set trial procedures were unfavorable to the plaintiff and applied to change the case from summary to ordinary procedures. The court approved this, and on April 28 of the same year, formed a collegial panel to hold another public hearing under ordinary procedures. After the second trial in the first instance, the court ruled [(2006) Shen Luo Fa Min Yi Chu Zi No. 643]: All of the plaintiff's claims were dismissed. Regarding the fiercely debated issue of "false advertisements," the trial court held that it "does not fall within the scope of the People's Court's evaluation, and this court will not make a judgment." The plaintiff appealed, and the Shenzhen Intermediate People's Court held a hearing on August 17 of the same year, issuing a final judgment in December of the same year, upholding the original verdict. However, the judgment criticized the defendant's "false advertisement" behavior.

II. Media Coverage

Within less than two months after the "false advertisement" incident of *Harvest* was exposed on the *Century China* website in late December 2005, over 5,000 comments were posted, with the vast majority of netizens criticizing *Harvest*'s erroneous behavior. After the plaintiff filed the lawsuit, dozens of media outlets across the country reported on it, and China Central Television (CCTV) covered and discussed it multiple times. The mainstream public opinion expressed support for the plaintiff's lawful rights protection. For example, on February 20 and 21, 2006, CCTV's Channel 12 (Legal Channel) aired a special report titled *Taking It Seriously* on the topic of "*Harvest* Defrauding Readers." The program interviewed Xu Youyu, a researcher at the Chinese Academy of Social Sciences and an expert on the history of the Cultural Revolution, whose views were highly representative:

"An editor-in-chief compiled an issue of a magazine, and the content of that issue was to mourn his own death. This is logically absurd, utterly ridiculous, and a huge joke! Even if it was unintentional, even if their actions were understandable... A literary magazine or literary figure's duty is to supervise society, and criticism is one of your responsibilities. They should naturally stand in this position, to criticize errors or undesirable things. How can they be even more bureaucratic than officials? When others criticize them, I think their reaction is far too bureaucratic—that condescending, arrogant attitude—I find it indefensible..."

Other media outlets that reported on the matter include:

On December 24, 2005, *Huashang Daily* reporter Huang Zhe reported: *After Mr. Ba Jin's Death, He Still "Serves" as Magazine Editor-in-Chief—*Harvest* Accused of Fraud Over "Ba Jin"*;

On February 9, 2006, *Oriental Morning Post* reporter Chen Jia reported: *Zhu Jianguo Sues *Harvest*: Making a Mountain Out of a Molehill?*;

On February 10, 2006, *Xinmin Evening News* reporter Xia Qi reported: *"Commemorative Edition" Retaining "Ba Jin as Editor-in-Chief" Is Absolutely Not Fraud*.

On February 10, 2006, "Nanjing Morning Post" reporter Zhong Min reported "Shenzhen citizen sues 'Harvest' for publishing false book advertisements";

On March 22, 2006, "Shenzhen Commercial Daily" reporters Xu Songlan and Bao Li reported "Lawsuit against 'Harvest' magazine for false information consumption infringement case heard yesterday";

On March 22, 2006, "Beijing News" reporter Zhang Hong reported "Lawsuit against 'Harvest' for using Ba Jin's name to publish false advertisements heard in court";

On March 22, 2006, "Southern Metropolis Daily" reporters Chen Xuebin and Xu Wenge reported "Listing Ba Jin as editor-in-chief is a sign of respect";

On March 29, 2006, "Jinyang Net - Private Economy News" reporter Xiong Wei reported "Zhu Jianguo's lawsuit against 'Harvest' heard in Shenzhen court", etc.

3. Focus of the case

(1) The plaintiff believes that the defendant's infringement is a fact.

The plaintiff argues that the defendant marked "Chief Editor: Ba Jin" on the cover of the sixth issue in 2005, and also indicated "Chief Editor: Ba Jin" in the loose-leaf advertisement attached to the magazine for the 2006 issue of *Harvest*, which clearly disseminated false information to the plaintiff, Zhu Mou, and the general readership. The defendant, *Harvest* magazine, claims this was an intentional act to commemorate Mr. Ba Jin, which further demonstrates their subjective intent to deceive consumers, causing harm to the rights and interests of Zhu Mou, who questioned as a consumer, and leading readers to mistakenly believe that Ba Jin had already edited the first issue of *Harvest* in January 2006 before his death. Additionally, the defendant noted "Chief Editor: Li Xiaolin" on the first issue of *Harvest* in January 2006, effectively negating the false information previously released. This fully proves that the content marked as "Chief Editor: Ba Jin" on the sixth issue of *Harvest* in 2005 and in the loose-leaf advertisement was false information.

(2) The defendant believes the plaintiff is putting on a show.

The defendant argues that this case is a manufactured one for hype. Substantively, if the plaintiff sues for fraud, he must describe whose infringement caused harm to him. I believe no infringement exists. Regarding the consequences of infringement, I think the plaintiff's claim of being deceived is false and feigned. The plaintiff's lawsuit is a personal publicity stunt under the guise of "defending Ba Jin." The plaintiff has no right to act as a public spokesperson or file a lawsuit on behalf of others without authorization.

4. Lawyer's Opinion

When interviewed by a reporter from *Shenzhen Business Daily*, Wang Tengfeng, the attorney entrusted by the plaintiff Zhu Jianguo, analyzed the deep-seated real causes and positive significance of this case.

(1) The prominent manifestation of cultural hegemony formed by the combination of administrative hegemony and cultural celebrities

(2) The deep-seated real reason for this case is the long-standing existence in the cultural circle of individual cultural power and hegemony formed by combining administrative hegemony with cultural celebrities, which has been concentrated and manifested in the defendant. Today, with the death of Ba Jin, it has been highlighted and exposed. At the same time, it has also been disclosed due to the plaintiff's justice and persistence. This is its deep-seated real reason. Today, China has long entered the market economy era of the 21st century, but the defendant is still accustomed to official-style behavior, treating the completely equal relationship between editor and reader as an unequal superior-subordinate relationship of giving and receiving. They disregard readers' rights, treat national laws as child's play, use big names as a shield, and rely on Ba Jin's fame and the authority of the Shanghai Municipal Party Committee Propaganda Department to condescend and bully the weak!

(3) Promoting the improvement of law-abiding standards in China's cultural circle

(4) The significance of this lawsuit is obviously very positive, even a typical and representative feat. It is not only to seek justice for the individual but also to do good for the public interest. To a certain extent, it will inevitably promote the improvement of law-abiding standards in China's cultural circle. We have reason to believe that the plaintiff's litigation will play a positive role in combating cultural power and eliminating cultural hegemony.

(5) Enhancing citizens' legal awareness and rights protection awareness

(6) The plaintiff, as a weak individual of a mere scholar, facing the defendant's long-renowned and officially backed powerful collective, dares to break through the long-standing Chinese habit of meekly submitting to oppression and allowing power to arbitrarily take away. They are not afraid of power, not afraid of difficulties, disregard reputation and slander, go through many twists and turns, and are persistent. After being rejected by the defendant with strong words, they resolutely take up legal weapons and sue the defendant in court to hold them accountable and seek justice. This has a positive practical effect on enhancing citizens' legal awareness and rights protection awareness and building a harmonious society. For the plaintiff's "stubborn" behavior of fighting against counterfeit cultural products, which is law-abiding, legal, and law-protecting, it should be affirmed and supported legally, and society should encourage and applaud it!

(Edited and commented by Zheng Fengdan)

Appendix: Comments from some scholars and experts on the "Harvest" magazine case

— Excerpted from "Six Key Points of the 'Harvest' Case Debate" Blog House

1. Professor Xu Youyu, researcher at the Chinese Academy of Social Sciences, at 12:30 on February 21, 2006, the legal channel (12) of China Central Television aired a 20-minute TV special report "Being Serious," discussing the "Harvest deceives readers" incident. Professor Xu Youyu participated in the program and said: In recent days, I have been following the "Harvest's false advertisement" incident every day. This is a scandal that makes Harvest very embarrassed, a very absurd thing! Originally, the "Special Issue in Memory of Ba Jin" in Harvest (Issue 6, 2005) was also labeled "Edited by Ba Jin," which was already absurd enough. Then came a false advertisement saying "Ba Jin continues to edit Harvest in 2006," which is too absurd! Too dramatic! This is an insult to the vast number of readers! After this incident was exposed, even without a lawsuit, it should make Harvest feel ashamed. The rights and wrongs of this matter are already very clear. Harvest's refusal to apologize shows its lack of taste. Because of this incident, Harvest is now a weak party lacking reason, but it should still admit its mistake and apologize. If it insists on not admitting fault, it has reached an unbearable level of stupidity! If I had known about this earlier, I would definitely 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 go to court. Even if a bureaucratic agency did such a thing, it would be indefensible, but Harvest has done even worse than a bureaucratic agency. For example, if a mayor died yesterday, and you report today that he is still presiding over work, isn't that too ridiculous?! Even a bureaucratic agency wouldn't make such a joke. How could a cultural person do that?! Harvest is too foolish; this is a foolish thing that makes the whole country laugh!

2. Dr. Teng Biao, lecturer at China University of Political Science and Law, on March 19, 2006, Dr. Teng Biao provided the plaintiff with a "legal analysis" of the "Harvest" case—

The defendant knew that Ba Jin had passed away but still used the title "Edited by Ba Jin" on the magazine, which constitutes subjective intent.

In the defense statement, the defendant admitted, "It was indeed deliberately done by our agency, a special way for our colleagues to express respect and commemorate Mr. Ba Jin. We could not bear his departure, feeling that though he is dead, he lives on, his words still echo in our ears, and he is still by our side." This also confirms that point. Such an excuse is not worth refuting.

It is an indisputable fact that the defendant continued to use the title "Editor-in-Chief" on the magazine after Mr. Ba Jin's death, which deceived 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 rights as a reader. The defendant's claim that "the plaintiff has neither any right nor any power over the editorial management of *Harvest* magazine" is unreasonable. By purchasing *Harvest* magazine, the plaintiff entered into a contractual relationship with the magazine, making them equal civil subjects. He is certainly entitled to sue for the defendant's intentional use of false information.

Legal basis can also be referenced: Article 68 of the Supreme People's Court's Opinions on Several Issues Concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China (Trial Implementation): If one party intentionally informs the other party of false circumstances or intentionally conceals the true circumstances, inducing the other party to make a false expression of intent, it can be deemed as fraudulent conduct.

3. Gu Zexu, a Shanghai civil rights legal expert. On February 9, 2006, Gu Zexu, a Shanghai civil rights legal expert, posted on the *Century School* website, "My Interview with *Yangcheng Evening News* on the Case of Zhu Jianguo v. *Harvest* Magazine," stating—

(1) My basic stance: Zhu Jianguo's lawsuit against *Harvest* magazine is justified.

(2) Zhu Jianguo is legally justified:

1. Zhu Jianguo, as a consumer, sued the Shenzhen Xinhua Bookstore and the magazine *Harvest* as two defendants, with evidence of purchase receipts and the commodity (the magazine) as proof. The legal relationship is clear. Zhu Jianguo initiated the lawsuit from the perspectives 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 moral damages is only symbolic and cannot be fully justified in law. 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. He lacks corresponding evidence.

3. The previous explanation disclosed by the media, that the 2005 Issue 6 of *Harvest* and the loose-leaf advertisement were printed while Ba Jin was alive, does not constitute a valid defense. First, although Ba Jin was still listed as the editor-in-chief of *Harvest* Issue 6 in 2005, he could not have convened an editorial meeting to mourn himself while alive, nor could he have edited 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*, as a commodity (magazine) production and operation unit, could not distribute advertisements that were already false in order to save advertising costs. For consumers, they must purchase and obtain commodities and advertisements with truthful information. The difficulties of the enterprise are irrelevant to consumers, and the enterprise cannot shift its difficulties onto consumers.

4. There are comments online defending the magazine *Harvest*, but so far, I have not seen a single reason that can truly hold up legally.

(3) Zhu Jianguo’s lawsuit against the magazine *Harvest* is meaningful:

1. This serves as a promotion for China's organizational and personnel systems. Ba Jin has passed away, but *Harvest* magazine is a commodity production and operation unit facing consumers. Organizational and personnel work must keep pace promptly and not remain stuck in old concepts, thinking that *Harvest* magazine is merely a literary form of propaganda, thus failing to appoint a new editor-in-chief in a timely manner.

2. Even if the Organization Department, Propaganda Department, and Personnel Department fail to keep up with the work in a timely manner, *Harvest* magazine can still take action. Although it has to continue displaying the words "Editor-in-Chief: Ba Jin," it must add a black border, using this customary cultural practice to clearly inform consumers that "Editor-in-Chief: Ba Jin" is merely an honorary form and holds no practical significance. This case serves as a wake-up call for improving the level of editorial work in China.

3. The use of celebrity effect should be cautious. Times have changed, and more people have legal awareness.

4. The above points are the significance of the case itself. The broader implications are far-reaching, but I cannot elaborate on them.

5. IV. Well-known media commentator Jiang Zijun, on March 23, 2006, published a signed commentary in *The Beijing News* titled "Respecting Mr. Ba Jin at Least Means Respecting the Facts." The article states:

6. This behavior by *Harvest* magazine is suspected of violating China's current laws and regulations. Clearly, after Mr. Ba Jin's death, he could no longer fulfill the duties of editor-in-chief. Persisting in labeling Ba Jin as the editor-in-chief in the magazine is certainly problematic. Mr. Ba Jin himself was always strongly opposed 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 precisely requires respecting the facts and the readers, which aligns with Mr. Ba Jin's consistent character of "speaking the truth."

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　　2006-8-28