Supreme Law Intellectual Property Dispute Determination Rules | The plaintiff defends whether the defendant's subject is fit or not, and the focus of the review of the jurisdictional objection stage.
Published:
2020-11-14
1. the source of the problem
At the jurisdictional objection stage, the defendant often argues that he should not be the defendant in this case and excludes the jurisdiction of the court where he is located, on the grounds that the subject is not suitable. However, in the stage of filing a case or not entering the actual trial stage, how to judge whether the defendant is qualified as the subject, and how to grasp the boundaries of substantive trial and procedural review are issues that should be considered.
2. Supreme Court Judgment Rules
Trial court: Supreme People's Court
Case No.: (2020) No. 359 of the Supreme People's Court
Cause of action: infringement of computer software copyright dispute
Referee Date: August 24, 2020
The appellant Tianjin Samsung Communication Technology Co., Ltd. (hereinafter referred to as Tianjin Samsung Company) has a dispute over infringement of computer software copyright with the appellee Bousse Communication Technology (Beijing) Co., Ltd. (hereinafter referred to as Bousse Communication Company), Beijing Bousse Software Technology Co., Ltd. (hereinafter referred to as Bousse Software Company) and Beijing Guoding Seck Investment Development Co., Ltd. (hereinafter referred to as Guoding Investment Company), appeal to the Supreme People's Court against the (2018) Beijing 73 Civil Ruling No. 1643 of the People's Republic of China made by the Beijing Intellectual Property Court on February 21, 2020.
After examination, the court held that Article 119 of the the People's Republic of China Civil procedure Law stipulates: "A prosecution must meet the following conditions: (1) the plaintiff is a citizen, legal person and other organization with a direct interest; the (II) has a clear defendant; the (III) has specific claims, facts and reasons; and the (IV) falls within the scope of the people's court accepting civil litigation and the jurisdiction of the people's court accepting the lawsuit." The second paragraph of Article 127 stipulates: "If the parties have not raised an objection to jurisdiction and responded to the lawsuit, the people's court shall be deemed to have jurisdiction, except for violations of the provisions on level jurisdiction and exclusive jurisdiction." Article 35 of the "Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law" stipulates: "If the parties fail to respond to the defense after the expiration of the defense period, and the people's court finds that the case is not under the jurisdiction of this court before the first instance is opened, it shall Ruling to transfer to the people's court with jurisdiction." According to the above provisions, it is one of the statutory conditions for a case to be under the jurisdiction of the people's court; the people's court shall examine and make a ruling on the objection to the jurisdiction raised by the parties; if the parties fail to respond to the defense after the expiration of the defense period, if the people's court finds that the case is not under the jurisdiction of this court before the opening of the first instance, it shall rule to transfer it to the people's court with jurisdiction. Therefore, the issue of case jurisdiction falls within the scope of the people's court's ex officio review, and the people's court can review it in accordance with the law during the filing stage, during the jurisdiction objection procedure, and before the first instance. In the procedure of objection to jurisdiction, whether the defendant is qualified or not should be judged according to the specific circumstances of the case. When the suitability of some defendants does not affect the jurisdiction of the people's court over the case, the question of their suitability can be examined at the substantive trial stage. When some defendants become the connecting point to determine jurisdiction, and their suitability directly affects the jurisdiction of the people's court of the case, the question of the defendant's suitability should be examined at the stage of jurisdictional objection. When examining the suitability of the defendant, it is generally only necessary to have preliminary evidence to prove that the defendant is formally related to the facts involved, that is, to the extent that it can be argued, and there is no need to examine the substantive contents such as whether the defendant constitutes infringement or breach of contract and whether it needs to bear legal liability. After examination, if the defendant as the point of jurisdiction is qualified, the people's court has jurisdiction over the case, and the case should be heard in the entity. In this case, Bosi Communication Company and Bosi Software Company sued that Guoding Investment Company sold products made by Tianjin Samsung Company that infringed the copyright of the computer software involved in the case. Guoding Investment Company argued in the original trial that the transaction was at the company's address and office. The Bosi Communication Company requested Guoding Investment Company to provide a receipt, but the alleged sales behavior was the personal behavior of Sun Jingchun, the legal representative of Guoding Investment Company, cannot represent Guoding Investment Company. According to the statements of the parties, Guoding Investment Company delivered the alleged infringing products at its domicile and issued a receipt, so Guoding Investment Company and the fact of the alleged infringement in this case are formally arguable and meet the requirements of the formal relevance of the examination of the defendant's suitability.
3. depth analysis
The suitability of the subject of litigation is the scope of the substantive trial, but in the jurisdictional objection stage, if a defendant is used as the point of connection, the defendant's location is used as the basis for jurisdiction, and thus whether it has the subject qualification should be judged at the jurisdictional objection stage. However, this judgment is not to confirm whether it bears tort liability, but should grasp the appropriate limits. As an applicant for a jurisdictional objection, one should pay attention to the angle from which the objection is raised, and should not overemphasize that it should not be the subject of infringement, but should focus on arguability.
When some defendants become the connecting point to determine jurisdiction, and their suitability directly affects the jurisdiction of the people's court of the case, the question of whether the defendant is suitable should be examined at the stage of jurisdictional objection. When examining the suitability of the defendant, it is generally only necessary to have preliminary evidence to prove that the defendant is formally related to the facts involved, that is, to the extent that it can be argued, and there is no need to examine the substantive contents such as whether the defendant constitutes infringement or breach of contract and whether it needs to bear legal liability.
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