civil judgment

(20 13) Damin si zhong zi No.50

Appellant (defendant in the original trial) is a university in Dalian, and his domicile isNo. 1, Lingshui Street, Ganjingzi District, Dalian, Liaoning Province.

The legal representative is Wang Zu, chairman of the board.

Entrusted agent Liu Jiemou, male, born on May 25th, 197 1, Han nationality, a teacher of this school, lives at 2-2- 1 Qingtian Garden, Lingshui Road, Ganjingzi District, Dalian City, Liaoning Province.

Authorized Agent: Wu Shan, lawyer assistant of Liaoning Feiran Law Firm.

Appellee (plaintiff in the original trial): Beijing Fangzhou Information Technology Co., Ltd., located at Floor 6, Block A, Huatong Building, Chegongzhuang West Road 19, Haidian District, Beijing.

Legal Representative Tian Mou, chairman of the board.

Entrusted agent Li, female, born on June 1979+ 1 1, Han nationality, department manager of this company, living at No.4-4-1,Jinxia North Park, Shahekou District, Dalian, Liaoning Province.

Authorized Agent: Hu Jian, lawyer of Beijing Zhongchuang Law Firm.

The appellant, a university in Dalian, refused to accept the civil judgment of the Xigang District People's Court of Dalian (20 1 1) Ximinchuzi No.2145 because of a computer software development contract dispute with the appellee, Beijing Fangzhou Information Technology Co., Ltd. On May 29th, 2003, 2065438, our college formed a collegial panel in accordance with the law and heard the case in public. Appellants Liu Jiemou, Wu Shan's entrusted agents, and Appellees XXX Ark Company's entrusted agents Li Mou and Hu Jian attended the proceedings. The case has now been closed.

In the original trial, Ark Company claimed that our company signed a cooperation agreement with Dalian University on June 5438+1October 65438+1October 2007, and Dalian University entrusted our company to complete the development of the application software of channel telemetry and remote control system. Our company completed the software development as agreed, and delivered the results to a university in Dalian. The software passed the acceptance on September 20, 20 10. A university in Dalian should be liable for breach of contract if it fails to pay as agreed. It is requested to order a university in Dalian to pay 200,000 yuan for software development expenses and the loss of interest on overdue payment (from September 20, 20 10 to the date of payment, calculated according to the interest rate of similar loans for the same period stipulated by the People's Bank of China).

The original trial of a university in Dalian argued that it disagreed with the claim of an Ark company. 1. Article 5 of the Technical Specification, an annex to the cooperation agreement signed by both parties, stipulates that "an Ark company shall submit complete system function software and its source code during system acceptance", but an Ark company has not fulfilled its contractual obligations so far, and our school has no choice but to organize its own staff to complete the relevant work, so our school is not obliged to pay the remaining funds. 2.20 10 The acceptance on September 20th is the acceptance of the whole project that our school is responsible for, not the acceptance of the software developed by an Ark company. Passing the acceptance does not mean that the software delivered by it is qualified.

The court of first instance found through trial that on September 30, 2007, a university in Dalian, as one of the trustees, signed the Technology Development (Entrustment) Contract with the Nanjing Waterway Bureau of the Yangtze River, and accepted the entrustment of the Waterway Bureau to undertake the construction of the network equipment procurement, integration and application software development section of a waterway and intelligent shipping construction demonstration project from Nanjing to Liuhekou of the Yangtze River. On June 5438+1October 65438+1October 2007, a university in Dalian, as Party A, and an Ark Company, as Party B, signed the Cooperation Agreement on Party B's Assistance to Party A in Developing the above-mentioned Bid Section (hereinafter referred to as SZHD-04 Bid Section). Agreement: 1. Party A agrees to cooperate with Party B to complete the following main contents in the contract document of SZHD-04 Bid Section: (1) Development of application software for navigation mark telemetry and remote control system; (2) Installation and debugging of application software of navigation mark telemetry and remote control system; (3) Compilation of remote control standards for navigation marks; (4) Provide users with relevant technical training. 2. Rights and obligations of Party A: (1) Responsible for the coordination and management of the whole project and the owners and affiliated units; (2) Be responsible for providing Party B with the contents related to the cooperation project in the SZHD-04 contract; (3) Be responsible for providing Party B with technical data and test products of affiliated units required in the project development process; (4) Be responsible for providing Party B with detailed and accurate technical specifications of cooperation projects, which shall be signed by both parties; (5) Be responsible for providing 400,000 yuan to Party B for cooperative development of the project, which will be paid by Party A after passing the acceptance. 3. Rights and obligations of Party B: (1) Party B shall organize personnel to assist in research and development in strict accordance with the requirements of Party A; (2) Party B shall uniformly obey Party A's project management and scheduling; (3) Party B guarantees that the cooperation project fully meets the requirements of SZHD-04 contract and technical specifications signed by both parties; (4) Party B guarantees to complete the cooperation project within the time agreed in this agreement. 4. The time for Party A and Party B to jointly complete the project content stipulated in this agreement is three months after the start of SZHD-04 contract. 5. The acceptance criteria of cooperative projects are the contract of SZHD-04 and the technical specifications signed by both parties. 6. Liability for breach of contract: (1) If Party B fails to complete the cooperation project as agreed, Party A may not pay the amount agreed in this agreement ... (3) If Party A fails to pay the cooperation fee as agreed, Party B has the right to claim liquidated damages from Party A according to the actual loss. ..... 10, and this agreement shall come into force as of the date of signature by the representatives of both parties. Article 5 "System Development Plan" of the technical specifications attached to this agreement stipulates that "the system development period is from June 6, 2007 to February 28, 2008. The system adopts the method of combining phased acceptance with completion acceptance. (5) Complete all functions of the system before 1. (6) Before February 10, complete the field test, stage acceptance and delivery of all functions of the system. (7) On February 20th, the system was accepted. Submit the following materials and documents at the time of acceptance: a. Complete system function software and its source code; B system development documents, including requirements analysis, overall design, detailed design, test plan and test report, etc. C user manual (including online help). (8) On February 28th, the system was completed and accepted. " Representatives of both parties signed the agreement. On June 65438+ 10/0, 2008, an ark company completed all the functions of the system as agreed. On June 5438+1October 65438+May 2008, a university in Dalian paid a cooperative development fee of 200,000 yuan to an Ark company. A university in Dalian failed to complete the acceptance on February 28, 2008 on the grounds that "an Ark company did not provide the source code of system function software", and has not paid the remaining development cost of 200,000 yuan.

On June 5438+February 3, 2008, Wang Yong, an employee of Ark Company, sent an email to Wang Deqiang, the project manager of a university in Dalian. The content was "Hello, Teacher Wang, this is the latest source code of the Nanjing project, please check it ...", and the attachment of the email was named "Navigation Aids Business System (source code) 08 1230. On 20 10/0,65438+10, 19, Wang Deqiang sent an email to Wang Yong, which read "Manager Wang: Hello. The Ministry of Communications plans to complete the acceptance of a waterway project in Nanjing, Yangtze River at the end of February or early March. Now Mr. Yang has gone to Nanjing to prepare the acceptance materials. The source code of navigation mark communication module and business management system undertaken by your company has not been submitted to us, which has affected our reputation and that of your company. I hope that your company can submit all the source codes according to the agreement between us, so as not to affect the completion acceptance and payment of the project. " The next day, Wang Yong sent an email to Wang Deqiang, the content was "1". About the source code, our company sent it to your email address in Yahoo on Wednesday, February 3 1 Sunday 16: 19, 2008. The reason at that time was that the Ministry of Communications accepted the work and then accepted it successfully. 2. In 2009, every time you asked for more than 200,000 yuan, you said that the acceptance was over and you were waiting for the audit work in Nanjing. For us, the training and acceptance of this project has ended. 3. At present, we insist on after-sales service ... 4. Please settle the project balance of 200,000 yuan to support our after-sales service for this project, otherwise we will not be able to support the after-sales service of this project at our own risk. Please give us a definite answer about the settlement date of the balance of 200,000 items. On February 2, 20 10, Wang Deqiang sent an email to Wang Yong, which read, "Manager Wang: Hello. The waterway project in Nanjing will be completed on February 28th, marking the first anniversary of its operation. The Ministry of Communications plans to hold a waterway project completion acceptance meeting in Nanjing in early March. I hereby inform you. " In this email, a university in Dalian did not mention the source code again. In the lawsuit, a university in Dalian denied that the "Navigation Aids Business System (Source Code) 08 1230.rar(4.7M)" sent to Wang Deqiang by Wang Yong, an employee of an Ark Company, was the source code of the application software of navigation AIDS telemetry and remote control system agreed by both parties in the contract.

In addition, on 20 10, a waterway and intelligent shipping demonstration project in Nanjing-Liuhekou section of the Yangtze River passed the completion acceptance of the Ministry of Transport.

The above facts identified by the court of first instance are supported by evidence such as the technology development (entrustment) contract, the technical specification of the cooperation agreement and its annexes, the notarial certificate (20 1 1) J.Z.N.Z.Zi No.20678, the bank wire transfer voucher, the accounting voucher and the statements of the parties.

The court of first instance held that both parties should fully perform their obligations according to the agreement. If one party fails to perform its contractual obligations, it shall be liable for breach of contract such as continuing to perform and compensating for losses. If one party fails to pay the price or remuneration, the other party may require it to pay the price or remuneration, and if losses are caused to the other party, the amount of compensation shall be equivalent to the losses caused by breach of contract. In this case, the cooperation agreement signed by both parties is the true intention of both parties, which does not violate the mandatory provisions of laws and administrative regulations, and the agreement is legal and valid. So-and-so Ark Company has completed the development task, and so-and-so University in Dalian shall fulfill its obligation to pay the development expenses as agreed. The two sides agreed that the development cost is 400,000 yuan. After paying 200,000 yuan, the remaining development expenses of a university in Dalian have not been paid so far, which constitutes a breach of contract. We should continue to fulfill our obligation to pay the remaining 200,000 yuan development expenses as agreed. The overdue payment of a university in Dalian also brought corresponding interest losses to an Ark company, so the court of first instance supported the claim of a university in Dalian to pay 200,000 yuan for software development fees and the interest loss of overdue payment (calculated from September 20, 20 10, according to the interest rate of similar loans of the People's Bank of China in the same period). A university in Dalian put forward that "an Ark company failed to fulfill its contractual obligation that' an Ark company should submit complete system functional software and its source code during system acceptance', and it organized its own staff to complete the relevant work". "The acceptance on September 20th, 20 10 is the acceptance of the whole project for which it is responsible, not the acceptance of the software developed by an Ark company. Acceptance does not mean that the software delivered by Ark Company is qualified ",because the application software of channel telemetry and telecontrol system entrusted by a university in Dalian is a part of the whole project it is responsible for. If this part fails to pass the acceptance, the whole project will not pass the acceptance. So-and-so Ark Company has also provided evidence to prove that it has provided the source code of this project to a university in Dalian, but Dalian University has not provided evidence to the contrary to prove that the software delivered by so-and-so Ark Company is unqualified, and the source code is not the source code agreed in the contract, nor has it provided evidence to prove that it has organized its own work to complete the relevant work. Therefore, the court of first instance did not support the above defense opinions of Dalian University.

To sum up, according to Articles 60, 107, 109, 112 and 113 of People's Republic of China (PRC) Contract Law, Article 64 of People's Republic of China (PRC) Civil Procedure Law and Article 2 of the Supreme People's Court's Provisions on Evidence in Civil Proceedings, the court of first instance ruled as follows: "The defendant Dalian University paid the plaintiff Beijing Fangzhou Information Technology Co., Ltd., Ltd. The software development fee of 200,000 yuan and the interest loss of overdue payment shall be calculated within ten days from the effective date of this judgment (from 20 10 to the date of payment by the defendant, according to the similar loan interest rate stipulated by the People's Bank of China). If the defendant fails to perform the obligation to pay money within the period specified in this judgment, he shall pay double interest on the debt during the delayed performance in accordance with the provisions of Article 229 of the Civil Procedure Law of People's Republic of China (PRC). The case acceptance fee is 7 370 yuan (the plaintiff has paid in advance), the defendant Dalian University bears 4 300 yuan, and the plaintiff Beijing Fangzhou Information Technology Co., Ltd. bears 3,070 yuan. "

After the verdict was pronounced, a university in Dalian refused to accept the original judgment and appealed to our court, requesting to cancel the original judgment, send it back for retrial or change the judgment to reject the appellee's claim. The reasons are as follows: Firstly, the contractual obligations of Ark Company include the development, installation, debugging, compilation and technical training of the application software of the navigation mark telemetry and remote control system. The complete system functional software and its source code shall be delivered on February 20th, 2008. The technical achievements delivered must be tested by the third party's function and technical indicators, and both parties shall sign the system acceptance form. So-and-so Ark Company failed to deliver functional software, source code and other documents within the time stipulated in the contract, and failed to pass the function and technical index test of a third party. The court of first instance only found out the fact that an Ark company submitted the source code by mail, but did not examine whether an Ark company fulfilled other contractual obligations, so it decided that it had fulfilled all contractual obligations and ordered a university in Dalian to pay the money. The evidence was insufficient and inconsistent with the facts. Secondly, the source code delivered by Ark Company does not meet the requirements. So-and-so Ark Company only provided e-mail to prove that it delivered the source code, but did not prove whether the contents in the annex were the source code agreed in the contract and whether the source code met the technical and functional indicators, nor did it prove that it was qualified for acceptance. So-and-so University in Dalian did not recognize the source code delivered by it. Finally, if there is any dispute over the performance of the contract, the party who has the obligation to perform shall bear the burden of proof. The court of first instance held that the source code provided by a university in Dalian was not recognized as legal source code, but no evidence was provided to prove that it was an error of applicable law.

So-and-so Ark Company replied that the original judgment found the facts clear, the applicable law was accurate and the judgment was correct, and the appellant's appeal request should be rejected according to law. The specific reasons are as follows: First, a university in Dalian said that the software developed by an Ark company could not meet the requirements, and it used the software developed by others, but it did not submit any evidence, which is also contradictory to its statement in the email. Second, a university in Dalian denied receiving the source code to create an excuse for its dependence on the late payment fee of 200,000 yuan. So-and-so Ark Company has fully fulfilled its contractual obligations. Three, the original judgment on the distribution of burden of proof of both parties is legal. The appellee has sufficient evidence, so there is no need for further proof. A university in Dalian should produce enough evidence to refute the existing evidence, otherwise it should bear the adverse consequences. 4. The original judgment is fair and reasonable to both parties and can achieve the purpose of signing the contract.

After trial, our court confirmed the facts identified in the original judgment.

During the second trial, the appellant submitted the following evidential materials to our court:

Evidence 1 and technology development (entrustment) contract, which prove that the total amount of the whole project is11920,000 yuan, and the part which is responsible by an ark company only accounts for 3.3% of the whole project. The acceptance of the whole project does not mean that the project in charge of an Ark company is qualified, and a university in Dalian has the ability to develop the software involved by itself.

Evidence 2. The CD-ROM of the source program was completed by a university in Dalian, which proved that the source program provided by an Ark company was not adopted in the acceptance project, and the acceptance of the whole project did not prove that the source program delivered by an Ark company was qualified.

Evidence 3. (20 13) notarial deed of dazhenminzi No.41591,with the content of 165438+20081October 25th. A university in Dalian has explicitly asked an Ark company to submit its communication and business system source code, and asked it to submit it again on February 6, 2009.

Evidence 4. Judicial expertise opinion, which proves that the source code submitted by an Ark company does not meet the contract requirements.

So-and-so Ark Company's cross-examination opinions on the above-mentioned evidence are as follows: It disagrees to cross-examine the so-called new evidence submitted by a university in Dalian after the second trial. 1. The above evidence is inconsistent with the facts identified in the first instance, contradicting its previous statement, and it is forged evidence; 2. The evidence has nothing to do with this case, but is a unilateral matter of a university in Dalian, and has nothing to do with the performance of the contract between the two parties; Three, the above evidence has exceeded the time limit for proof, does not belong to the new evidence stipulated by law.

Our appraisal opinions on the above evidence are as follows: Evidence 1 is a technology development (entrustment) contract signed by a university in Dalian and Nanjing Yangtze River Waterway Bureau. The contract was submitted by a university in Dalian in the first instance and accepted by the court of first instance, and should not be submitted again in the second instance, so our hospital will not identify the evidence repeatedly. Evidence 2 is the relevant evidence that a university in Dalian developed software within a specified time in order to find out the facts of the case. However, because the evidence is an electronic data CD, it is easy to modify and has no trace, so it is impossible to verify its authenticity. So-and-so Ark Company does not recognize the evidence, and the software achievement itself cannot prove its research and development subject, so our hospital will not accept the evidence. The e-mail in Evidence 3 has been notarized and its authenticity should be recognized. The content of the email is the communication between the two parties involved in the case about software delivery, which is related to this case and accepted by our hospital. Evidence 4 was submitted after the trial of the second instance, but a university in Dalian submitted an application for appraisal at the trial of the first instance, which was later rejected by the Judicial Technology Department of our college on the grounds that there was no qualified appraisal institution. Because this judicial appraisal opinion is an appraisal conclusion issued by an appraisal institution entrusted by a university in Dalian, the cleanliness of the output computer of the appraisal material, namely the electronic file "Source Code of Navigation Aids Business System" received by Wang Deqiang E-mail on June 5438+February 3 1 2008, was not checked during the appraisal.

We also found that in 20081October 25th, 165438, Wang Deqiang of a university in Dalian sent an email to Wang Yong of an ark company, the content was "Hello. The source code (communication and business system) issued in the early stage is incomplete, lacking engineering documents and solution documents. Please send it to me by Mr. Wang before noon today so that it can be submitted to users. At present, the lack of these two parts of source code in the acceptance materials will inevitably affect the convening of the software system expert review meeting before acceptance, thus affecting the acceptance process. Please cooperate with Mr. Wang to submit the source code. " On February 15, 2009, Wang Deqiang sent an email to Wang Yong, the content of which was "Manager Wang: Hello. Nanjing Waterway Bureau has scheduled an expert review meeting and project acceptance for a waterway project on February 26th and 27th, and the notice has been issued. Please ask Manager Wang to send me the latest and complete navigation mark business and communication source code before 17 for the user's (supervisor's) acceptance. Please also ask Mr. Wang to arrange for Wang Bo to report to Ning on the 25th. Thank you. " On February 23, 2009, Wang Deqiang sent an email to Wang Yong, the content of which was "Hello, Manager Wang". Attached are the agenda of the 26th application software system development quality evaluation meeting and the 27th handover acceptance agenda. Please accept it from Manager Wang. This acceptance is very important. Please always put the overall situation first. Neither you nor I can afford any mistakes. I hope that we will arrange Wang Bo to the scene as soon as possible from beginning to end and do a good job in this acceptance. "

On July 6th, 20 13, our hospital inquired about Wang Deqiang, the project director of a university in Dalian. Wang Deqiang recognized that the interface developed by Ark Company was used in the application software of navigation mark telemetry and remote control system that passed the acceptance, and it never informed Ark Company of the software involved.

We believe that the Cooperation Agreement on Development of Application Software of Navigation Mark Telemetry and Remote Control System signed by Ark Company and Dalian University is the true intention of both parties and does not violate the relevant provisions of laws and administrative regulations. Both parties shall fully perform their respective obligations as agreed.

The focus of the dispute in this case is whether Ark Company has fully fulfilled its software development obligations involved, and Ark Company bears the burden of proof for this fact. According to the contents of the e-mail notarial certificate submitted by Ark Company, it sent the latest electronic file "Navigation Aids Business System Source Code" to the project leader of a university in Dalian on June 5438+February 365438+1October 2008, and continued to provide after-sales service until June 5438+00. On September 23, 2009, the project leader of a university in Dalian asked an Ark company to arrange personnel to attend the application software system development quality review meeting on the 26th and the handover acceptance of the next day, and invited Manager Wang of an Ark company to attend the completion acceptance meeting of a waterway project in Nanjing on October 20th. Combined with the fact that a navigation channel and intelligent shipping demonstration project in Nanjing-Liuhekou section of the Yangtze River passed the acceptance of the Ministry of Communications on September 20th, 20 10, it can be concluded that Ark Company has delivered the application software of navigation mark telemetry and remote control system and passed the acceptance, and has completed its main obligations under the contract. However, the distribution of burden of proof is not immutable. In the case that Ark Company has initially completed its burden of proof, a university in Dalian claims that Ark Company has not fully fulfilled its contractual obligations and should provide evidence to prove it, otherwise it should bear adverse consequences. The court of first instance did not improperly allocate the burden of proof, and the appellant Dalian University's defense opinion that the allocation of the burden of proof in the court of first instance was wrong was rejected by this court.

A university in Dalian claimed that Ark Company failed to fully fulfill its contractual obligations, mainly because Ark Company failed to deliver functional software and source code documents within the time stipulated in the contract, and failed to pass the third-party functional and technical indicators test. Regarding the project delivery time, although the technical specifications attached to the cooperation agreement stipulate that the system acceptance will be carried out on February 20, 2008, the cooperation agreement stipulates that the completion time of a cabinet project is three months after the start of the SZHD-04 contract. In view of the fact that the application software of the navigation mark telemetry and remote control system involved is a sub-project of a waterway and intelligent shipping demonstration project in Nanjing-Liuhe section of the Yangtze River, and the completion time of the project is restricted by the overall project schedule, Ark Company needs a university in Dalian to provide the required technical data, and obey the project management and scheduling of a university in Dalian to complete the software development. Moreover, Ark Company submitted the latest source code on February 3, 2008 165438+ February 365438, and its original source code was submitted earlier than this time, which was also recognized by Dalian University in the email of 20081October 25165438+. At the same time, a university in Dalian has never raised any objection to the delivery time in the communication with the staff of an Ark company, so it should be considered that it has fulfilled the deadline of an Ark company. According to the principle of good faith, a university in Dalian can no longer refuse to pay development fees on this ground. Regarding the acceptance, the technical specification attached to the cooperation agreement stipulates that "the third party designated by the user shall test the functions and technical indicators of the system software. When the test results and inspection results meet the requirements of the acceptance clause, both parties shall sign the system acceptance form for confirmation". Although the two parties did not sign the system acceptance form for confirmation, the agent of a university in Dalian made it clear in the trial of the second instance that as long as the third-party users were satisfied, the acceptance was qualified. Moreover, according to the email contents of a university in Dalian on February 5, 2009 and February 23, 2009, a university in Dalian has informed an Ark company to send personnel to participate in the overall project acceptance organized by Nanjing Waterway Bureau. Therefore, the responsibility for the unsigned acceptance of the sub-project undertaken by an Ark company is not borne by an Ark company, but through the completion acceptance of the whole project, it can be concluded that the sub-project is qualified.

A university in Dalian argued that the accepted project was developed by its own personnel, but did not provide enough evidence to prove it. And judging from the facts of the case, the cooperation agreement stipulates that a university in Dalian will pay a development fee of 400,000 yuan after passing the acceptance, while a university in Dalian will pay a development fee of 200,000 yuan on June 5438+1October 65438+May 2008, that is, when Ark Company completes all the functions of the system according to the contract. Ark Company has repeatedly urged the remaining development to be time-consuming, and has never proposed to give up the software developed by Ark Company and develop it by itself. Nor did you ask Ark Company to terminate or terminate the contract. Instead, in 2009 and 20 10, I sent emails to the staff of Ark Company to invite them to attend the quality review meeting of application software system development and the completion acceptance meeting of Nanjing Waterway Project, which is obviously contrary to common sense. Moreover, the project leader of a university in Dalian also recognized that the application software of the navigation mark telemetry and remote control system accepted by the Ministry of Communications used the interface designed by Ark Company. Therefore, a university in Dalian can't prove that the acceptance project it advocates is developed by itself, and our school will not adopt it.

To sum up, certain Ark Company fulfilled its contractual obligations, and certain university in Dalian failed to pay the remaining expenses, which constituted a breach of contract and should bear the legal responsibility of paying the price and compensating for the losses. The appeal reason of a university in Dalian lacks factual basis and legal basis, so this court will not accept it. The original judgment found the facts clear and the applicable law was correct. According to Item (1) of Paragraph 1 of Article 170 of the Civil Procedure Law of People's Republic of China (PRC), the judgment is as follows:

Reject the appeal and uphold the original judgment.

The acceptance fee of the second instance case is 4 300 yuan (paid in advance by the appellant), which shall be borne by the appellant Dalian University.

This is the final judgment.