It is national treatment

National treatment, also known as equal treatment, means that the host country should grant foreigners the same civil rights status as its own citizens. The scope of application of national treatment usually includes: domestic taxes, transportation, re-export transit, treatment of ships in ports, rescue of ships in distress, trademark registration, application for invention rights, patent rights, copyrights, civil litigation rights, etc.; it does not include fishing in territorial waters, Purchase of land, retail trade, etc.

Introduction to the case:

The snowy weather that occurred in the south in 2008 caused a disaster, dragging the Wal-Mart Spring Fort branch that had just opened in Zunyi City into a whirlpool of litigation. . The story begins with the snowy weather. On January 19, 2008, the Wal-Mart branch opened for its second day at the Spring Fort branch on Waihuan Road, Honghuagang District, Zunyi City. The lively opening ceremony and the crowded flow of people seem to have nothing to do with the snowy weather outside. The temperature of minus 2 degrees does not dampen people's enthusiasm for shopping. At around 19:00 that afternoon, a 37-year-old male doctor from Zunyi Hospital claimed that he was injured on a flight of stairs entering Wal-Mart after walking out of the Wal-Mart store after shopping. After a period of treatment and recovery, the male doctor filed a lawsuit against Wal-Mart, claiming that Wal-Mart failed to fulfill its safety obligations and caused his fall, resulting in a 10th-level disability, and requested Wal-Mart to compensate for economic losses such as disability compensation. About 50,000 yuan.

After Wal-Mart received a copy of the indictment, it entrusted me through Shanghai Yingsai Jinhui Insurance Company to act as the attorney for Wal-Mart Shenzhen State Investment Department Store Co., Ltd. and Wal-Mart Shenzhen State Investment Department Store Co., Ltd. Zunyi Spring Castle Branch in this case. **Same as agent. After accepting the entrustment, I conducted the necessary investigation and evidence collection, and then made the following legal and technical processing of this case.

Key points of defense:

After accepting the entrustment, I made a brief defense in four aspects regarding the content of the plaintiff’s lawsuit.

1. The respondent did not go to the respondent or any branch of the respondent for shopping. The respondent only made purchases to consumers or potential consumers within the scope of its business premises or within the scope of its actual control and control. Consumers bear the obligation to protect their personal and property safety.

2. The respondent does not know where the fall that the respondent claims occurred. As a person with full capacity for civil conduct, the respondent should be able to foresee the consequences of traveling and walking in snowy weather. Care should be taken to avoid unexpected and damaging facts.

3. The respondent has no evidence to prove that on January 19, 2008, within the scope of the respondent’s business premises, the respondent did not take safety measures such as removing ice and snow.

4. Judging from the facts of the respondent’s prosecution: Since the respondent did not commit any infringement on the respondent, and the respondent was careless, the damage caused by the fall was not caused by his own fault. It is not necessarily caused by ice on the ground, so the respondent should bear the consequences of the damage caused by his own fault. Request the court to reject all claims of the respondent.

Two court hearings

In the two court hearings, the plaintiff provided the following evidence for claiming rights: 1. The claim for copies of shopping receipts was related to the defendant Wal-Mart Springburg Branch. Consumer contract relationship; 2. The Zunyi Evening News stated the temperature conditions on that day, proving that the plaintiff fell due to snowy weather and Walmart failed to fulfill its safety obligation to shovel ice and snow; 3. A copy of the records of the first aid to the plaintiff from the Zunyi Hospital Emergency Center, The record records that the plaintiff was picked up by the ambulance of the hospital and the defendant was taken to Zunyi Hospital; 4. A set of disability appraisal conclusion evidence and bills proved that the plaintiff suffered economic losses due to an accidental fall.

My cross-examination and representation opinions:

1. The plaintiff still cannot provide the original shopping receipts for purchasing daily necessities from the defendant, so the copy of the shopping receipts provided at the first court hearing cannot be compared with the original. The originals are verified to be consistent. According to Article 69 of the aforementioned judicial interpretation: Copies and reproductions that cannot be verified with the original documents and objects cannot be used as a basis for determining the facts of the case. At the same time, the plaintiff did not provide evidence to prove that the fact that he fell occurred within the scope of the defendant's business premises or places under its control. Therefore, according to the provisions of Article 2, Paragraph 2 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation" (hereinafter referred to as the Evidence Provisions), the plaintiff should bear the loss of the case if he cannot provide evidence.

2. The Zunyi Evening News on January 19, 2008, according to the weather forecast, only showed that the temperature that day was zero to minus two degrees. It was not clear that there was condensation (condensation, also called freezing rain. Simply put, it is caused by the mixing of ice and snow under the action of strong cold air, and sometimes even the mixing of rain and snow). Therefore, the plaintiff claimed that there was condensation. , the defendant failed to clear the ice on the road, and the fact that the plaintiff fell and injured did not exist.

3. The plaintiff submitted an unsealed medical record from Zunyi Hospital Emergency Center at the first court session. According to the plaintiff’s statement, it was clearly and accurately recorded that the plaintiff “accidentally fell.” The stamped medical record submitted again by the plaintiff at the second hearing was firstly missing that word; secondly, what was extremely absurd was that the cross-examined and unsealed medical record submitted by the plaintiff to the trial court at the first hearing was not included in the trial court file. The medical record is missing. From this, it can be determined that the plaintiff used his identity as an employee of Zunyi Hospital to issue false and untrue medical records. January 19, 2008 was the second day after the Springburg branch opened for business. According to the plaintiff’s claim, the place where the fall occurred was at the overpass entering the Springburg branch, and an ambulance from the emergency center was on duty. Then the occurrence of such a major fact will definitely leave a deep impression on people. The overpass entrance directly leads to the Springburg branch operator Michaels and its owner Yuan (the daily business hours are from 8 am to 22 pm). Know that this fact is happening. In fact, according to our inquiry transcript (attached with a copy of the operator's business license and ID card), the witness appeared in court for cross-examination (and provided the original ID card and business license for the trial court to verify). This true, legal and valid evidence reveals that the fact that the plaintiff fell did not occur within the defendant’s business premises and within the scope of its actual control and control.

4. The plaintiff provided an appraisal conclusion that the fall caused a tenth-level disability, which also showed that the plaintiff’s fall that night was not serious. As a young, fit and strong middle-aged man, the plaintiff did not need ambulance emergency treatment at all. From this, it can be further confirmed that the false medical records of the emergency center issued by the plaintiff that night were untrue.

5. The plaintiff and his agent confessed in court (this self-admission should be confirmed as valid evidence according to the provisions of Article 8, paragraph 3, of the "Evidence Regulations"): After he fell and was injured that night, Please ask pedestrians on the roadside to notify the defendant's service personnel to help them to the defendant. The plaintiff's self-confessed behavior confirmed that the place where the plaintiff's fall occurred was not within the defendant's business premises and within the scope of its disposal and control. According to the plaintiff, if the defendant's service personnel imitate Lei Feng's behavior and the defendant is wronged and wronged, it will not only make the law unfair and unjust, but more seriously: it will make the law break through the bottom line of morality and warn people not to do so in the future. Keep doing good things or you'll get yourself into trouble.

6. The fire protection acceptance certificate submitted by the defendant, the cleaning contract signed with the cleaning company and the cleaning scope stated in the contract, the contents of the audio-visual CD in which the defendant organized employees to clear snow in snowy weather, wealth The fact that the company's two security captains and Michaels' operating owner Xue Ning Weather Wealth Company removed ice and snow from the overpass, spread coal ash, and laid carpets and cardboard revealed that the defendants were not responsible for the hardware of their own business premises, or the business premises and For software outside the scope of its business premises, it has fulfilled its full and sufficient security obligations. Since this case applies the principle of fault attribution, in terms of the constituent elements of the infringement, the defendant is not at fault if it fulfills its security obligations. According to the legal theory of tort law: no fault, no compensation. Therefore, the defendant does not have the obligation to pay compensation for the plaintiff's own negligent negligence.

This agent believes that the plaintiff’s complaint lacks evidence to prove that he has formed a consumer contract relationship with the defendant and is a consumer or potential consumer of the defendant. Moreover, through a complete and sufficient chain of evidence, it was revealed that the defendant, as a Fortune 500 operator, a business giant in the world's retail industry, in addition to having a complete security system to ensure the safety of its business premises, also has a series of scientific and reasonable safety precautions. Prevent unexpected events from happening. Fully adequate safety and security obligations have been fulfilled. According to the constitutive elements of torts under the duty to ensure safety of business premises, the defendant has no fault and therefore no liability. We sincerely request the trial court to reject all the plaintiff’s petitions in accordance with the law.

Hearing and judgment results:

The Honghuagang District People's Court believed that the focus of the dispute in this case was: whether a consumer service contract relationship was formed between the original defendant and the defendant, and whether the defendant had fulfilled all its obligations. Safety and security obligations within reasonable limits.

During the trial, the plaintiff presented a copy of the shopping receipt from the defendant on the day of the incident and the medical records of the emergency center of Zunyi Hospital, which could not mutually corroborate the formation of a consumer contract between the plaintiff and the defendant and the exact location where the plaintiff's damage occurred. Moreover, the plaintiff has no corresponding evidence to prove that the defendant failed to fulfill its safety protection obligations within reasonable limits to the consumer plaintiff, thereby causing damage to the consumer plaintiff. According to Article 2, Paragraph 2 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Procedures", if there is no evidence or the evidence is insufficient to prove the factual claims of the parties, the party who bears the burden of proof shall bear the adverse consequences. This court does not support the plaintiff’s claim. The witnesses, physical evidence, and audio-visual materials presented by the defendant during the trial can mutually confirm that the defendant fulfilled its safety protection obligations within reasonable limits by preventing the stairs outside the supermarket from slipping during the incident when the plaintiff caused the injury. If a violation of safety obligations results in personal injury, the principle of fault liability applies. The operator will only bear liability if it is at fault, and the defendant has provided sufficient evidence to prove that it has met the level of care required by laws, regulations or operating regulations. The defendant argued that it had fulfilled its safety protection obligations within reasonable limits and was not at fault for the plaintiff's damage, which this court accepted. Accordingly, in accordance with the provisions of Article 2, Paragraph 2 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation", the judgment was made to reject the plaintiff's claim.

At this point, my rights protection for Walmart has come to a perfect end. As a foreign enterprise, our country has given Wal-Mart national treatment in the field of civil and commercial laws (national treatment, also known as equal treatment, means that the host country should grant foreigners the same civil rights status as domestic citizens. A law that concludes trade treaties Principle. It refers to the fact that a country gives foreign citizens, enterprises, and ships the same civil treatment as its own citizens, enterprises, and ships. It is usually included in trade treaties in the form of national treatment clauses. The scope of application of national treatment usually includes: Domestic taxes, transportation, re-export transit, treatment of ships in ports, rescue of ships in distress, trademark registration, application for invention rights, patent rights, copyrights, civil litigation rights, etc.; does not include fishing in territorial waters, purchase of land, retail trade, etc.) status. The fact that I defended Wal-Mart's rights this time not only reflects the success of the case itself and saved Wal-Mart from tens of thousands of yuan in losses, but the key is that it also demonstrates that the People's Republic of China, as a great country, has given According to the national treatment status of foreign enterprises, China's laws, judicial organs and practicing lawyers will protect the legitimate rights and interests of foreign enterprises in accordance with the national treatment status.