The Second-Instance Judgment in the "Sea Palace" Case Within a Case Is Seriously Wrong — The Ultimate Revelation of the "Sea Palace" Case (Serial 30)

[6] Part Three: Lawyer's Rights Defense Bravely Challenges the Legal Affairs Office

5. The second-instance judgment is grossly erroneous.

The date noted at the end of the first-instance Civil Judgment was July 6, 2012, but it was not served to the parties until around October of that year. Attorney Zhiming believed that the first-instance judgment "deliberately omitted and distorted important facts of infringement" and intentionally sought to "absolve the Legal Affairs Office of the Shenzhen Municipal Government," a government agency, of liability for fault. The reasoning was that a large amount of evidence had been submitted to fully prove that the Legal Affairs Office had clearly coerced and compelled Southern Daily to publish the infringing press release during the performance of its duties, and that during the court proceedings, Southern Daily had also repeatedly testified to the fact that it had been severely coerced and forced by the Legal Affairs Office. Additionally, the first-instance judgment's failure to support the plaintiff's claim for compensation for mental distress was also erroneous. Accordingly, Attorney Zhiming filed an appeal with the Shenzhen Intermediate People's Court on October 29, 2012.

During the first instance trial, the Southern Daily had been perfunctory in its defense, seeking only to protect itself and avoid offending either the plaintiff, Zhiming Law Firm's lawyer, or the defendant, the Legal Affairs Office of the Shenzhen Municipal Government. Now that the first-instance judgment has held it solely liable for infringement, it feels greatly wronged and, on October 30, 2012, submitted a four-page appeal to the court, detailing four grounds for appeal. It first emphasized that it had no subjective intent to infringe upon Wang Tengfeng's right to reputation, and that its conduct did not constitute infringement of that right. It then argued that Zhiming Law Firm's lawsuit only claimed that the content of Report 2 had defamed and damaged reputation, targeting Report 2, yet the first-instance court used the inaccurate description in Report 1 as a starting point, took it out of context, concluded that without Report 1 there would be no Report 2, and accordingly ruled that the Southern Daily must bear liability for the inaccuracies in Report 1 and the excessive scope of the correction in Report 2. Therefore, the first-instance court's judgment and factual findings exceeded the scope of Wang Tengfeng's claims. The Southern Daily's second and third grounds for appeal pertain to the core issues in dispute in this case, and are quoted verbatim as follows:

2. The first-instance people's court's finding that the appellant failed to strictly review and verify the form and content of Report 2, and thus failed to fulfill its duty of care, is clearly erroneous.Wrong.

Southern Daily reported in its article "Shenzhen Municipal Government Legal Advisor: The 'Sea Palace' Case May Be Winnable" that the appellee, Attorney Zhiming, served as a legal advisor to the Shenzhen Municipal Government, which was indeed inaccurate. When the Legal Affairs Office of the Shenzhen Municipal Government requested a correction from Southern Daily, the reporter Guo Biao reviewed the press release from the Legal Affairs Office and found that the proposed correction expanded the scope of the original content and was inappropriate in form. He contacted the Legal Affairs Office and requested an alternative method of correction, or that the correction be based on Attorney Zhiming's own statement. However, the Legal Affairs Office insisted on publishing the correction exactly as written in their press release. The appellee, Attorney Zhiming, was also aware of this matter and had consulted with the Legal Affairs Office regarding the content and form of the correction. These facts were already examined during the first-instance trial, and the appellant had submitted relevant evidence. Therefore, the Futian District People's Court's finding that the appellant failed to review and verify the form and content of the second report is clearly inconsistent with the facts. The appellant had fulfilled its duty of review and verification. The appellant also raised objections as to whether to publish the report according to the official press release from the Legal Affairs Office, and the appellee, Attorney Zhiming, had also raised objections. The appellant only published the report under the strong insistence of the Legal Affairs Office. The court's assertion that the appellant failed to fulfill its review duty is inaccurate.

Third, since the court of first instance found that "as the functional department responsible for government legal advisory work, the Legal Affairs Office's request that the defendant Southern Daily issue a correction to remedy negative impact constitutes the legitimate exercise of its duties and powers, and does not possess illegality," yet also found that "Report 2, in terms of title, content, length, font, and other formal aspects, gave more prominent display to the plaintiff's name and personal identity, exceeding the appropriate form and content necessary to correct the erroneous description of the plaintiff's identity in Report 1," there exists a logical error.

Report 2 was published based on the content of the press release issued by the Legal Affairs Office of the Shenzhen Municipal Government. If the relevant content of Report 2 exceeded the appropriate form and content necessary to correct the error in the description of the plaintiff's identity in Report 1, then it would be the "form and content" of the press release issued by the Legal Affairs Office of the Shenzhen Municipal Government that exceeded what was necessary to correct the error in the description of the plaintiff's identity in Report 1, which is to say that the press release of the Legal Affairs Office of the Shenzhen Municipal Government was problematic. The appellant submits that if the court of first instance found that Report 2 exceeded the scope of the error in Report 1, then the Legal Affairs Office of the Shenzhen Municipal Government should also bear corresponding legal liability. It is impossible that the news published in accordance with the press release of the Legal Affairs Office of the Shenzhen Municipal Government should be treated differently—the Legal Affairs Office of the Shenzhen Municipal Government was performing its duties and exercising its rights as a legitimate act, whereas the appellant bore the fault of failing to exercise strict review.

The Shenzhen Intermediate People's Court accepted the appeal filed by Zhiming Law Firm and Nanfang Daily under case number "(2013) Shen Zhong Fa Min Zhong Zi No. 205," and conducted mediation and the second-instance court hearing in Courtroom No. 10 of the Shenzhen Intermediate People's Court at 9:30 AM on March 15, 2013.

During the second-instance trial, Attorney Zhiming, beyond the two points already stated in his Appeal Brief, emphasized and added the following: First, based on the appeal filed by Southern Daily and the facts established in the first-instance trial, it can be confirmed that the infringing report in question, whether in content or form, was required by the Legal Affairs Office of the Shenzhen Municipal Government to be published by Southern Daily in the form of a press release; Second, when a newspaper corrects erroneous reports resulting from its own mistakes, it typically uses a correction notice format, whereas the infringing report in question was published in a news report format, highlighting Attorney Zhiming's identity and position as the main focus, which completely deviates from conventional and reasonable practices; Third, both the newspaper and the Legal Affairs Office exhibited clear intent to infringe. If the two infringers had decided to publish the infringing report privately without communicating with Attorney Zhiming, it could only be described as indirect reckless intent. However, in this case, the two infringers published the report after multiple rounds of communication and negotiation among all three parties, and despite Attorney Zhiming's firm opposition, which constitutes not only direct intent to infringe but also malicious infringement; Fourth, the most serious errors in the first-instance judgment are, firstly, the deliberate omission of the fact that during the negotiations among the three parties on the evening of April 13, 2011, Attorney Zhiming strongly opposed publishing the news report in the form of the Legal Affairs Office's press release, and secondly, the deliberate omission of the fact that the Legal Affairs Office coerced Southern Daily into publishing the infringing report in accordance with its press release format. These two deliberate omissions clearly show favoritism toward the Municipal Government's Legal Affairs Office.

As previously stated, the court opinion published by Southern Daily was identical to that contained in its Appeal Statement. The response of the Legal Affairs Office was essentially nothing more than asserting that the first-instance judgment had accurately found the facts and correctly applied the law, and that it had merely been exercising its duties and rights lawfully without committing any tortious acts—largely the same as the defense it had presented during the first-instance proceedings.

In cases where government departments are defendants, whether in administrative litigation or civil litigation, the courts find themselves in a similarly awkward position—if mediation fails, the only option is to delay the judgment indefinitely. In this regard, the Shenzhen Intermediate People's Court was not much better than the Futian District People's Court. During the long wait after the hearing, Zhiming lawyers repeatedly communicated and negotiated with the judges, sent complaint letters to court leaders, and even filed written requests for supervision and oversight with the Shenzhen Municipal Political and Legal Affairs Commission and the Standing Committee of the Municipal People's Congress, all to no avail. It was only after nearly a year of delay that the Shenzhen Intermediate People's Court finally issued its final judgment on October 15, 2013 (Figures 116, 117). The final judgment affirmed the facts found in the first instance, but overturned the first-instance ruling on the grounds of "unclear findings of fact and improper application of law," and dismissed all of Zhiming lawyers' claims—namely, that the Legal Affairs Office did not constitute infringement, and that Southern Daily News bore no tort liability either, because what was harmed was merely the lawyers' "sense of reputation" rather than the "reputation" protected by the right to reputation. The reasoning section of the Civil Judgment from the Shenzhen Intermediate People's Court reads as follows:

This court holds that this case is a reputation infringement case. It is necessary to distinguish among three different concepts: reputation, the right to reputation, and the sense of reputation. Reputation is society's objective evaluation of a citizen's conduct, thoughts, morality, contributions, and abilities, among other aspects. Such evaluation is objective and is obtained by the citizen through his or her own efforts and performance, not through self-evaluation. The right to reputation is the right of a citizen to maintain and safeguard his or her own reputation, and is the right enjoyed by individuals under the law to protect the social evaluation they have obtained against infringement by others. The sense of reputation is an inner self-feeling of a person, constituting one's feelings and self-evaluation of one's own value, including thoughts, conduct, and creditworthiness.

In this case, the Southern Daily's article dated April 12, 2011, described Attorney Zhiming's identity as "legal advisor to the Shenzhen Municipal Government," which caused public misunderstanding regarding Attorney Zhiming's identity. In its subsequent reports, the Southern Daily first defined whether Attorney Zhiming was indeed the "legal advisor to the Shenzhen Municipal Government" based on the official statement from the Legal Affairs Office, and in the final paragraph of the report, it also incorporated Attorney Zhiming's own views, explaining his identity from another perspective. This court holds that, first, the content of the Southern Daily's report dated April 14, 2011, was truthful; second, the report dated April 14, 2011, took into account the opinions of both Attorney Zhiming and the Legal Affairs Office, and the report was insufficient to cause the public to form a negative evaluation of Attorney Zhiming's identity and conduct, nor was it likely to adversely affect Attorney Zhiming's personal image, and thus it did not constitute infringement against Attorney Zhiming. The content of the report would only, to a certain extent, affect Attorney Zhiming's

An inner personal emotion that affects one's self-evaluation of their reputation, harming their sense of honor rather than their right to reputation. The right to reputation and the sense of honor are two distinct concepts; harm to the sense of honor does not necessarily result in damage to the right to reputation. Therefore, in this case, the report in question only damaged the sense of honor of Attorney Zhiming, not his right to reputation, and thus this court does not support his claims. The appellant, Southern Daily,'s appeal request regarding not infringing upon Attorney Zhiming's sense of honor is upheld by this court.

One of the most important judicial principles in our country is "taking facts as the basis and law as the criterion." When judges render specific judgments, if they intend to cite prevailing legal theories beyond explicit legal provisions as the basis, they must act with extreme caution. First, they must ensure that their understanding of the relevant legal theories is comprehensive and accurate. Second, in the written judgment, they must provide thorough and clear explanations and elaboration of the cited legal doctrines. Otherwise, they may easily render erroneous judgments, or be perceived by parties dissatisfied with the judgment as being unreasonable or engaging in judicial corruption. Regrettably, the reasoning section of the aforementioned judgment is poorly written and logically unclear, which to a large extent reflects that the judge's understanding of the legal theory concerning "sense of reputation" is not comprehensive and accurate enough.

According to the generally accepted legal theory recognized by authoritative scholars in Chinese civil law, reputation in a broad sense includes external reputation and internal reputation. External reputation is the evaluation by third parties of the existence value of a specific civil subject. Such evaluation is made by others, exists in society, possesses an objective attribute, can be perceived by others, and has objective criteria for judging gains and losses, hence it is also called objective reputation. Internal reputation is a specific civil subject's inner feeling of his or her own existence value, that is, one's self-evaluation, perceived only by oneself, without any standard that can be objectively measured, hence it is also called subjective reputation. External reputation or objective reputation is customarily referred to as reputation, namely reputation in the narrow sense; internal reputation or subjective reputation is customarily referred to as the sense of reputation. Although there is still controversy, it is generally believed that the "reputation" protected by the right to reputation is reputation in the narrow sense, that is, external reputation or objective reputation. The sense of reputation, namely internal reputation or subjective reputation, is closely related to personal dignity and therefore may become the object of protection under the general personality right.

The conceptual analysis above also clearly tells us that, in determining whether a specific defamation dispute harms reputation or the sense of reputation, the sole criterion is whether the alleged infringing act is perceived by third parties and thereby affects their objective evaluation of the right holder, or is known only to the right holder and thus affects only the right holder's subjective self-perception. Following this logic, we can easily point out the most absurd aspect of the reasoning in the aforementioned judgment by the Shenzhen Intermediate People's Court: the "reports" by the Legal Affairs Office of the Shenzhen Municipal Government and Southern Daily were widely disseminated through newspaper distribution and online reposting, and the format and content of these "reports" would lead any person with ordinary reasoning ability to directly conclude that "Zhiming Law Firm is nothing but a swindler," yet the court insisted that the only harm suffered here was to Zhiming Law Firm's own personal feelings. If this is not a lack of the most basic common sense and logical judgment regarding human affairs, then it is a deliberate blindness and deafness to the facts of the case, amounting to a perversion of justice in the ruling.

Figure 116: Scan of the reasoning section of the Civil Judgment by the Shenzhen Intermediate People's Court.

Figure 117: Scan of the reasoning and main ruling sections of the Civil Judgment by the Shenzhen Intermediate People's Court.

(To be continued)