Literary and artistic rights litigation helps members create new glory!
Recently, the Literary Rights Protection Litigation Research Association, founded by Lawyer Wang Tengfeng, Vice President of the Shenzhen Bar Association and Director of Guangdong Zhiming Law Firm, received good news of winning the lawsuit from Lawyer Wang Weiping of Shanghai Guoxiong Law Firm, a member of the Literary Rights Protection Litigation Alliance! In this 8-year civil lending dispute case, Lawyer Wang Weiping, with decades of litigation experience and by drawing on practical theories of literary and artistic rights protection litigation, ultimately achieved a complete victory! After receiving the final victory judgment from the court, Lawyer Wang Weiping repeatedly praised the miraculous effect of using literary and artistic rights protection litigation to handle cases, and specially sent a case record to share the excitement of winning the case!
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 the process of handling this case, Lawyer Wang Weiping fully combined the theory and practice of literary and artistic rights protection litigation. Lawyer Wang Weiping emphasized in the third part of his case experience that the reason for the success of handling this case was due to fully drawing on the relevant content of the first and sixth parts of Lawyer Wang Tengfeng's "Preliminary Discussion on Literary Rights Protection Litigation"; — “ As a lawyer involved in litigation, it is necessary to creatively take law as the core and multiple disciplines as auxiliary, focusing on the principles of maintaining social fairness, justice, and honesty in the rule of law, and comprehensively using various methods such as emotion, reason, and law to resolve social disputes in order to protect the legitimate rights and interests of the parties in the Weiwenyi Rights Protection Litigation Research Institute. This is the ultimate display of the art of litigation; 、 “ Do not be bound by the limitations of the law;.
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) Civil First Instance No. 00546 "Civil Judgment"
Intermediate People's Court: (2015) Civil Retrial No. 00001 "Civil Ruling"
District People's Court: (2015) Min Er Zai Zi No. 00002 "Civil Judgment"
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 Letter"
Provincial Higher People's Court: (2017) Min Kang No. 46 "Civil Ruling"
Provincial Higher People's Court: (2019) Min Zai No. 108 "Civil Judgment"
The above set of confusing case numbers and legal documents records that an eight-year-long lawsuit finally reached a final ruling on April 8, 2020: upholding the civil judgment of the Intermediate People's Court (2016) Wan 07 Min Zai Zi No. 02. This judgment is final.
The case is not complicated. It is a simple private lending dispute that can be summed up in one sentence: On March 21, 2013, Jiang Wen (sentenced for a crime during the trial) borrowed 450,000 yuan from Zhang Gui, and my client Bai Qiang signed his name on the company seal in the guarantee column of the Loan Agreement. The key issue is whether my client should bear the guarantee liability. It is that simple and clear. However, to resolve this matter, the client fought a full eight-year lawsuit, going through first instance, retrial, second first instance, second instance, protest, and second retrial (High Court), finally concluding when the pandemic was largely lifted this year, ending with a complete victory for my client.
The case is simple, but those handling it complicated simple issues. I got involved after the second first instance and before the second instance. In the second first instance, Bai Qiang lost again. A white-haired man in his sixties, formerly an excellent elementary school principal, was assigned by the organization after retirement to serve as party branch secretary and union chairman at a private enterprise, responsible for safekeeping and using the company seal. When he found me, he was dejected, bewildered, holding documents, unsure where to start. I listened carefully to his rambling, resentful, disjointed account, and thoroughly reviewed the disorganized, out-of-order "evidence" he brought. Sympathizing with his plight and pitying his stubbornness, I said, "You've done the lawyer's job, but you're not a lawyer." He looked puzzled. I explained, "Litigation isn't about venting anger; it's about stating the law and reasoning, using evidence to do so. You're full of grievances, but you don't understand the techniques and art of litigation, so even with reason on your side, you may still lose." I helped him organize his thoughts, told him not to worry, and kept his "evidence" to find clues for victory. Over several days, I drafted a well-reasoned Appeal and submitted it to the second instance court. This substantial appeal led the court to fully support our views, ruling that my client bore no guarantee liability.
The appeal I drafted stated the facts and reasons: The District People's Court's Civil Judgment (2015) Min Er Zai Shen No. 00002, issued on November 12, 2015, failed to respect objective facts and correctly apply the law, making it erroneous and subject to reversal. The reasons are:
First, the second first instance judgment held: "The retrial applicant Bai Qiang, as Party C (guarantor), signed at the guarantee section of the Loan Agreement and promissory note, constituting a guarantee act." The appellant argues this judgment severely contradicts objective facts. The objective fact is that the appellant "Bai Qiang" signed within the company seal of Chengwen New Building Materials Co., Ltd., not separately at the guarantee section. This occurred because: 1) Evidence shows the appellant was responsible for safekeeping and using the company seal, and this procedure was required to ensure accountability in sealing, as per work flow regulations and his job duties; 2) Extensive evidence shows the appellant routinely operated this way in daily work involving seals, establishing a practice. The appellant's act of signing after sealing, within the seal, fully complies with Article 43 of the General Principles of Civil Law: "An enterprise legal person bears civil liability for the business activities of its legal representative and other staff." Although not the legal representative, as a staff member, signing within the seal represents normal business activities of the enterprise legal person. Thus, the appellant's signature within the company seal at the guarantee section of the Loan Agreement and promissory note was an official act, not a personal one, and its consequences should be borne by the company, not the individual. The guarantor for Jiang Wen's loan from Zhang Gui was the enterprise legal person Chengwen Company, not the appellant personally.
Second, the retrial judgment held: "If Bai Qiang was performing official duties, he would not need to provide the lender with a family member information form, ID card, and teacher's certificate copies, and the guarantor's family member information form, with spouse's name, address, and workplace, was written by him. Thus, his signature on the Loan Agreement and promissory note should be deemed a guarantee act, not an official act." The appellant argues this finding is entirely based on biased hearsay, lacking factual and legal basis.
First, the copies of the appellant's "Borrower's Family Member Information Form," "ID Card," and "Teacher's Certificate" submitted by the respondent Zhang Gui during the trial were neither attachments to the Loan Agreement nor prerequisites for signing it. Thus, these materials are not evidence and have no relevance to this case.
Secondly, the "Borrower's Family Member Information Form" submitted by the appellee Zhang Gui shows obvious signs of tampering: first, the word "borrower" was crossed out and changed to "guarantor" (the appellee Zhang Gui also admitted in court that he made the alteration himself); second, the appellee Zhang Gui filled in the appellant's mobile phone number without the appellant's consent. Tampered evidence has no legal effect. However, the appellee Zhang Gui overlooked an important point: this information form has no time reference and is an invalid form without specific target or purpose, and this evidence is irrelevant to this case.
In summary, the appellant requests the court of second instance to ascertain the facts according to law, verify the relevant evidence, correctly apply the law, revoke the "Civil Judgment" (2015) Min Er Zai Shen No. 00002 issued by the district people's court, and amend the judgment to support the appellant's retrial application.
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 thought the case was closed, but after the final judgment of the second instance, Zhang Gui filed a petition with the provincial court, which then lodged a protest with the provincial high court, leading to a retrial by the provincial high court. Unexpectedly, this retrial case took nearly four years from 2017 until 2020 to reach a result, which is the outcome described at the beginning of this article. However, to achieve this result, as Bai Qiang's retrial attorney, I continued to write proactive legal opinions to protect his legitimate rights, tirelessly traveling long distances for the retrial hearing and appearing in court. During the hearing, facing the aggressive remarks of the protest authority and the creditor's strenuous arguments, I continued to present evidence, argue based on law, and strive for justice. 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, as an agent of the parties in litigation, one of the basic requirements for a lawyer is to "accept the trust and fulfill the duty." Although lawyers do not have independent litigation subject status, they must adhere to professional ethics, uphold their legal and moral bottom lines against illegal or unfavorable claims from the parties, and not simply echo others or blindly comply. They must understand that dedication leads to positive results. At the same time, lawyers must maintain an indomitable and tenacious fighting spirit, especially when facing powerful opponents or strong judicial authorities. As long as the principle is just, they must persist to the end and not stop until the goal is achieved; otherwise, they lose their professionalism and combativeness.
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
