Literary and artistic rights litigation helps members create new glory!
Recently, the Literature and Art Rights Protection Litigation Research Association, founded by Lawyer Zhiming, Vice President of the Shenzhen Lawyers Association and Director of Guangdong Zhiming Law Firm, received good news of a victory from Wang Weiping, a lawyer at Shanghai Guoxiong Law Firm and a member of the Literature and Art Rights Protection Litigation Alliance! In this private lending dispute that lasted eight years, Lawyer Wang Weiping ultimately achieved a complete victory by relying on decades of litigation experience and by drawing on the practical theory of literature and art rights protection litigation! After receiving the court's final victorious judgment, Lawyer Wang Weiping repeatedly praised the magical results achieved by using literature and art rights protection litigation to handle cases, and specially sent a case-handling note to share his excitement over the victory!
This long-standing civil lending dispute, due to the parties' lack of understanding of the techniques and art of litigation, has made a simple case complex and almost led to an irreversible situation. Fortunately, the parties ultimately entrusted lawyer Wang Weiping, a member of our Literary Rights Protection Litigation Alliance, to ensure a comprehensive victory in the case.
In handling this case, Lawyer Wang Weiping fully integrated the theory and practice of literary and artistic rights protection litigation. In the third part of his reflections on handling the case, Lawyer Wang Weiping particularly emphasized that the reason for the success of this case was that he fully drew on the relevant content of Parts One and Six of "A Preliminary Discussion of Literary and Artistic Rights Protection Litigation" founded by Lawyer Zhiming—"As a lawyer participating in litigation, one must creatively take jurisprudence as the core and multiple disciplines as auxiliaries, centering on upholding the rule-of-law principles of social fairness and justice and honesty and credit, and comprehensively use various methods and means such as emotion, reason, and law to resolve social disputes in order to safeguard the lawful rights and interests of the parties; this is the ultimate demonstration of the art of litigation," and "one must not rigidly adhere to the limitations of legal provisions."
Lawyer Wang Weiping not only takes the theory of literary and artistic rights protection litigation as the cornerstone, but also experiences literary and artistic rights protection litigation in handling cases, fully divergent his thinking, and actively applies theory to handling this case. He actively draws on the handling techniques of literary and artistic rights protection litigation, breaks away from traditional mechanical handling thinking, cleverly uses literary and artistic rights protection litigation to discover the special circumstances of this case and creatively applies them in combination with the law. According to the law, we argued and won a complete victory, and the parties involved were extremely grateful!
Indeed, practice without theory is blind practice, and theory without practice is hollow theory. Literary and artistic rights protection litigation not only has a unique and systematic theory, but also has countless successful practice classic cases. It is based on the characteristics of human nature, strategically adopting various measures to handle legal litigation (dispute resolution) affairs in various litigation practices, creatively integrating and applying comprehensive knowledge and means of emotion, reason, and law, vividly explaining the original meaning and factual truth of law, and making all litigation (dispute resolution) participants have the ability to; Can hear, see, touch, and feel; The on-site effect has broken through the rigid and fixed thinking boundaries of traditional criminal, civil, and administrative professions, and the cross-border integration of legal service methods has unique effectiveness in solving difficult and complex cases, thus obtaining the best litigation (dispute resolution) effect. It is the best method and highest level of legal litigation and dispute resolution for all criminal, civil, and administrative professions, and has made remarkable achievements in handling various major, difficult, and complex legal disputes. We have helped alliance members solve a large number of difficult and complex cases, and have won widespread trust and praise from customers!
In the face of major, difficult, and complex cases, one can always find the starting point for solving the case in an instant in the dilemma of the case, turn disadvantages into advantages, and save the dead. This is what "means; Lawsuit for the Protection of Literary and Artistic Rights; The charm lies in it!
The following is the case record of Lawyer Wang Weiping using literary and artistic rights protection litigation to handle successful cases:
District People's Court: (2013) Min Er Chu Zi No. 00546 Civil Judgment
Municipal Intermediate People's Court: (2015) Min Shen Zi No. 00001 Civil Ruling
District People's Court: (2015) Min Er Zai Zi No. 00002 Civil Judgment
Municipal Intermediate People's Court: (2016) Wan 07 Min Zai No. 2 Civil Judgment
Provincial People's Court: Jian Min (Xing) Jian (2017) No. 34000000037 Civil Protest
Provincial High People's Court: (2017) Min Kang No. 46 Civil Ruling
Provincial High People's Court: (2019) Min Zai No. 108 Civil Judgment
The dazzling array of case numbers and legal documents above records that a lawsuit lasting eight years finally reached its final judgment on April 8, 2020: upholding the civil judgment of the Municipal Intermediate People's Court (2016) Wan 07 Min Zai No. 02. This judgment is final.
The facts of the case are not complicated. This is a simple private lending dispute that can be summarized in one sentence: On March 21, 2013, Jiang Wen (who was convicted of a crime during the trial of the case) borrowed 450,000 yuan from Zhang Gui. In the guarantee section of the Loan Agreement, my client Bai Qiang signed his name over the company seal. The focal issue is whether my client should bear suretyship liability. It is that simple and clear. Yet, to resolve this matter, the client litigated for a full eight years from beginning to end, going through the first instance, retrial, second first instance, second instance, protest, and second retrial (before the High Court), finally drawing to a close when the pandemic was basically lifted this year, and ending on a perfect note with a complete victory for the client I represented.
The case was simple, but it became complicated because those handling it overcomplicated simple issues. I became involved in this case after the second first-instance trial and before the second-instance trial. In the retrial of the first instance, Bai Qiang lost again. A white-haired man in his sixties, once an outstanding elementary school principal, was assigned by the organization after retirement to serve as party branch secretary and union chairman in a private enterprise. One of his duties was to keep and use the official seal. When he found me, he was dispirited, bewildered, clutching documents and not knowing where to begin. I listened carefully to his rambling, resentful, incoherent account, and carefully reviewed the “evidence” materials he brought, with unclear page numbers and reversed dates. I both sympathized with his plight and pitied his obstinacy, and said: “You have done all the work of a lawyer, but you are not a lawyer.” He looked puzzled. I explained: “Litigation is not about venting anger, but about reasoning and argumentation, and using evidence to reason and argue. You are full of resentment and anger, but you do not understand the techniques and art of litigation. Even with a valid case, you may still lose.” I helped him organize his thoughts, told him not to worry, kept his “evidence” materials, and resolved to carefully find clues to winning evidence. Over several concentrated days, I helped him draft a well-reasoned and well-supported “Appeal Petition” and submitted it to the second-instance court. It was this substantial appeal petition that finally won full support from the second-instance court for our position, and the judgment held that my client did not bear suretyship liability.
The facts and reasons stated in the appeal brief I drafted on behalf are as follows: The Civil Judgment (2015) Min Er Zai Shen No. 00002 issued by the District People's Court on November 12, 2015, failed to respect objective facts and incorrectly applied the law, and the judgment rendered thereon is therefore erroneous and should be reversed. The reasons are as follows:
1. The second first-instance judgment held: "The retrial applicant Bai Qiang, as Party C (guarantor), signed in the guarantee section of the Loan Agreement and the promissory note, which constitutes a guarantee act." The appellant submits that this judgment is seriously inconsistent with the objective facts. The objective facts of this case are: the signature of the appellant "Bai Qiang" was placed within the official seal of Chengwen New Building Materials Co., Ltd., rather than a separate signature in the guarantee section. The reasons for this situation are as follows: first, there is evidence proving that the appellant Bai Qiang was the staff member responsible for safekeeping and using the official seal at the company. To ensure a sense of responsibility in affixing the seal, this procedure was necessary. This was required by the workflow and was part of the appellant Bai Qiang's official duties and responsibilities. Second, there is substantial evidence proving that in the appellant Bai Qiang's past daily work, whenever matters involving the affixing of the seal arose, they were handled in this manner, which had already formed a customary practice. The appellant Bai Qiang's act of first affixing the seal and then signing, and signing within the official seal, fully complies with the provisions of Article 43 of the General Principles of Civil Law: "An enterprise legal person shall bear civil liability for the operational activities of its legal representative and other staff members." Although the appellant is not the legal representative of the enterprise, as an enterprise staff member, his signature within the official seal is a normal operational activity carried out on behalf of the enterprise legal person. Therefore, the appellant's signature within the company's official seal in the guarantee section of the Loan Agreement and the promissory note is an official act, not a personal act, and the consequences of such act should be borne by the company, not by the individual. The guarantor for the loan obtained by the appellant Jiang Wen from the respondent Zhang Gui is the enterprise legal person Chengwen Company, not the appellant individually.
2. The retrial judgment held: "If Bai Qiang was performing his duties, there would be no need for him to provide the lender with the information form of other family members, copies of ID cards, and teacher's certificates, and the contents of the spouse's name, address, and work unit recorded in the guarantor's family member information form were all written by him personally. Therefore, it should be determined that his act of signing the Loan Agreement and the IOU was an act of guarantee, rather than an act of performing his duties." The appellant submits that the court's finding on this fact is entirely based on biased hearsay, without any factual or legal basis.
First, the copies of the appellant’s “Borrower’s Family Member Information Form,” “ID card,” and “teacher’s certificate” submitted by the appellee Zhang Gui at the trial of this case are neither attachments to the Loan Agreement nor prerequisites for the lender and borrower to enter into the Loan Agreement. Therefore, these materials are not evidence and have no relevance whatsoever to this case.
Second, the “Information Form for Other Family Members of the Borrower” submitted by Respondent Zhang Gui bears obvious traces of tampering. First, the word “Borrower” was crossed out and changed to “Guarantor” (Respondent Zhang Gui also admitted in court that he made the alteration himself). Second, Respondent Zhang Gui, without the Appellant’s consent, arbitrarily filled in the Appellant’s mobile phone number. Tampered evidence has no legal effect. However, Respondent Zhang Gui overlooked an important point: this information form contains no time specification whatsoever. It is a non-targeted, purposeless, and invalid form, and this evidence has no relevance whatsoever to the present case.
In summary, the appellant respectfully requests that the court of second instance ascertain the true facts in accordance with the law, verify the relevant evidence, correctly apply the law, and pursuant to the law set aside the Civil Judgment (2015) Min Er Zai Shen No. 00002 rendered by the District People’s Court, and amend the judgment to support the appellant’s application for retrial.
The two factual and legal grounds raised in the appeal were fully adopted by the court of second instance, which recognized that Bai Qiang's act of stamping and signing the loan contract was an official act, not a personal act. The judgment revoked the main text of the first-instance judgment requiring Bai Qiang to bear guarantee liability, and amended it to hold the company liable for guarantee, with Bai Qiang bearing no guarantee liability. With my professional legal assistance, the client Bai Qiang's anxious heart was temporarily put at ease.
I had thought the case was already closed, but unexpectedly, after the final judgment of the second instance, Zhang Gui filed a petition for retrial with the Provincial Court, and the Provincial Court lodged a protest with the Provincial High Court, which led to the High Court taking up the case for retrial. What was even more unexpected was that this case, taken up by the High Court for retrial, lasted nearly four years starting from 2017 and only concluded in 2020, which is the outcome mentioned at the beginning of this article. However, in order to achieve this outcome, as Bai Qiang’s attorney for the retrial, I continued to write proactive and constructive representation opinions to protect his lawful rights, tirelessly traveling long distances in the heat for the retrial hearings and appearing in court. During the hearings, in the face of the aggressive remarks from the protesting authority and the strenuous arguments of the creditors, I continued to present evidence, argue based on the law, and fight with reasoned arguments. Finally, six months after the hearing, the retrial concluded.
Reflecting on the process of handling this case, looking at the revived final judgment, and recalling the client's emotional outpouring of gratitude, my insights are:
First, as a professional lawyer, handling cases requires a serious, careful, and cautious attitude. Never underestimate a case because it seems small or simple. A rigorous approach to case handling determines the direction of the case, avoiding detours and unnecessary complications, often achieving twice the result with half the effort.
2、 Handling any case, although there is no shortcut, there is art to it. As the saying goes, 'All roads lead to Rome, and you cannot hang yourself from one tree.' This is the truth behind it. We should pay attention to the skills and art of handling cases. In various litigation practice activities, as a participant in litigation, lawyers should creatively take law as the core, use multiple disciplines as auxiliary, and focus on the rule of law principles of maintaining social fairness, justice, and honesty and credibility. To safeguard the legitimate rights and interests of the parties, they should comprehensively use various methods and means such as emotion, reason, and law to resolve social disputes, which is the ultimate display of litigation art. The path of litigation is rigid and strict, and if it goes wrong, one will lose the lawsuit; But the path of litigation is also artistically feasible, and one should not be confined by legal restrictions or imprison one's own thoughts. Instead, one should use their brains, think carefully, and have rich practical experience, which is a prerequisite for proficiently handling and accurately applying literary and artistic rights protection litigation. This requires a professional lawyer to not only have practical knowledge of substantive law, but also to be proficient in procedural law and flexibly apply procedural law, including evidence selection, evidence mastery, evidence judgment, and evidence application in litigation procedures. No matter how capable a lawyer is, it is still a private right without the power of judgment. A qualified lawyer, while applying rigid legal provisions, must also express their true and professional intentions through the organic combination of emotion, reason, and law, so that judges can listen and make accurate judgments, in order to achieve the goal of protecting their rights in practice.
Third, when lawyers act as representatives of parties in litigation, “being entrusted by others and loyal to their affairs” is one of the basic requirements. Although lawyers do not have independent litigation subject status, they should strictly observe professional ethics. Regarding a party’s illegal or unfavorable claims, they must hold fast to their own legal bottom line and moral bottom line, and must not follow others blindly or obey without principle. They should understand that only dedication can produce true results. At the same time, lawyers must also have an indomitable and tenacious fighting spirit. Especially when facing powerful opponents or powerful judicial authorities, as long as the cause is just, they must fight to the very end and never give up until the goal is achieved. Otherwise, lawyers will lose their professionalism and fighting spirit.
The outcome of the case is over for me, but for my client, there is still a long road ahead. After the first-instance judgment took effect, 40,000 yuan was deducted from his meager retirement pension. Now, with the reversal of the judgment, the other party is heavily in debt and extremely short of funds. The judicial authorities also have complaints about the reversal, and initiating the execution reversal process will encounter many unforeseen difficulties. However, no matter how difficult the road, he will persevere with resilience, and I will continue to support him until a satisfactory resolution is achieved.
(Note: The parties are pseudonyms, and the names of the three-level courts are omitted.)
Author: Member of the Literary Rights Protection Litigation Alliance
Lawyer from Shanghai Guoxiong Law Firm
Wang Weiping
April 10, 2020
