Beijing Longba Lubricant Co., Ltd. and Shell Tonghe Beijing Petrochemical Co., Ltd. Technology Contract Dispute Appeal Case

Civil Judgment of Beijing Higher People’s Court

(2007 ) Gao Minzhong No. 71

The appellant (defendant in the original trial) Beijing Longba Lubricating Oil Co., Ltd. lives in xxx.

Legal representative Liu Wenlong, chairman of the board.

The appellee (plaintiff in the original trial) Shell Uniform (Beijing) Petrochemical Co., Ltd. lives in xxx.

Legal representative Deng Jiang, chairman of the board.

The defendant in the original trial, Beijing Zhongshi Uni-President Lubricant Co., Ltd., lives in xxx.

Legal representative Liu Zhijun, chairman of the board.

The appellant Beijing Longba Lubricant Co., Ltd. (referred to as Longba Company) was dissatisfied with the civil judgment (2006) No. 9660 of the Beijing No. 1 Intermediate People’s Court and filed an appeal with this court. After this court accepted the case on January 4, 2007, it formed a collegial panel in accordance with the law and held a public hearing on February 5, 2007. Feng Gencheng and Gao Jintang, the authorized agents of the appellant Longba Company and Beijing Sinopec Uni-President Lubricant Co., Ltd. (referred to as Sinopec Uni-President), the defendant in the original trial, and the appellee Shell Uni-President (Beijing) Petrochemical Co., Ltd. (referred to as Shell Uni-President) )’s authorized agents, Li Jun and Zhang Shidong, attended the court to participate in the litigation of this case. The case has now been concluded.

The original judgment found that on September 23, 2003, Party A Beijing Emperor Advanced Lubricant Co., Ltd. (referred to as Emperor Company), Party B Beijing Tongyong Petrochemical Co., Ltd. (referred to as Tongyong Company), Party C Longba The company and Ding Fang Zhongshi Uni-President Company signed a "Cooperation Agreement", which stipulates that all parties will immediately stop targeted negative remarks and publicity against other parties. Each party promises not to present this Agreement to any third party or disclose the contents of this Agreement. Otherwise, either party has the right to terminate this Agreement at any time, and this Agreement will be invalid.

After that, the above four parties signed a "Supplementary Agreement", which stipulated that Party C and Party D should bear RMB 1.25 million in related expenses incurred by Party A due to the "Tongshi" trademark litigation, of which 1.25 million yuan was incurred in 2003. Party A has been paid RMB 600,000 on November 17, and the remaining RMB 650,000 shall be paid before December 31, 2005.

Longba Company and Zhongshi Uni-President Company believed that since Emperor Company conducted negative publicity that was detrimental to both parties after the signing of the above agreement, it was a breach of contract, so they did not pay the remaining 650,000 yuan and provided other Considered evidence of negative publicity by Imperial Corporation - colorful leaflets selling "Tongyi" and "Tongshi" products. "Tongyi" products are the products of Emperor Company, and "Tongshi" products are the products of Longba Company and China Stone Uni-President Company. Longba Company and Zhongshi Uni-President Company also believed that Emperor Company's disclosure of the contents of the agreement involved in the case to its authorized agent and the court violated the agreement not to disclose the contents of the agreement to a third party, and it was also a breach of contract.

The original judgment held that since the color leaflet was not a formal publication, in the absence of other evidence and the denial by Emperor Company, the evidence could not be used to prove that Emperor Company had implemented the unification of Longba Company and China Stone. Alleged negative publicity by the company. Even if such publicity exists, it cannot be concluded that Emperor Company has conducted negative publicity on Longba Company and China Stone Uni-President Company simply from the price comparison of the two products. Regarding the defense reasons raised by Longba Company and China Stone Uni-President Company that Emperor Company had disclosed the contents of the agreement involved in the case to its authorized agent and the court and violated the agreement in the agreement not to disclose the contents of the agreement to a third party, Longba Company and China Stone Company When Uni-President Company failed to fulfill its contractual obligation to pay more than 650,000 yuan and Emperor Company required it to continue performance through litigation, Emperor Company informed its agent and the court of the relevant contents of the agreement involved in the case, which was a normal exercise of rights and did not constitute a Breach of contract.

To sum up, the court of first instance ruled in accordance with the provisions of Articles 60, 67 and 107 of the Contract Law of the People's Republic of China: Longba Company and Sinopec Uni-President Company paid RMB 650,000 to Diwang Company.

Longba Company was dissatisfied and appealed to this court, requesting to revoke the original judgment and reject the appellee’s claim.

The main reasons are: first, the color leaflet submitted by the appellant has proved the fact that the appellee has breached the contract in advance. The leaflet compares "Uni-President" products with "Tongshi" products, which obviously disparages "Tongshi". The bad faith of the product; secondly, the respondent also violated the terms of the agreement by disclosing information related to the agreement involved to its authorized agent.

Emperor Company and China Stone Uni-President Company obeyed the original judgment.

After trial, it was found that: On September 23, 2003, Party A’s Imperial Company, Party B’s Tongyong Company, Party C’s Longba Company, and Party Ding’s Zhongshi Tongyong Company signed a “Cooperation Agreement”. Article 1 of the agreement Agreement: Each party hereby solemnly promises that from the effective date of this agreement, each party will immediately stop targeted negative speech and publicity (especially speech and publicity that is likely to cause conflict) and administrative procedures including but not limited to other parties. and complaints regarding judicial proceedings. Any disputes involving the future market development, product design, production, marketing and other aspects of the parties involved should be negotiated amicably and resolved based on the principles of equality, friendship, mutual benefit and reciprocity, without any other targeted propaganda and defeatist and other confrontational methods.

Article 11 of the agreement stipulates: Party A, B, C and D promise not to present this agreement to any third party or disclose the contents of this agreement. If any party presents this agreement to a third party or leaks the contents of this agreement, any party has the right to terminate this agreement at any time, then this agreement will be invalid and will no longer have any binding force on parties A, B, C and D.

Afterwards, the four parties mentioned above signed a "Supplementary Agreement". The third article of the agreement stipulates that: Party C and Party D are responsible for the public and private relations and related matters arising from Party A's "Tongshi" trademark litigation. The cost is 1.25 million yuan, of which 600,000 yuan has been paid to Party A on November 17, 2003, and the remaining 650,000 yuan will be paid within the next two years, that is, before December 31, 2005.

Longba Company and China Stone Uni-President Company recognized that they failed to pay the remaining 650,000 yuan to Emperor Company, and believed that the reason for non-payment was that Emperor Company breached the contract first, that is, Emperor Company made irregularities after signing the agreement involved. It is beneficial to the negative publicity of Longba Company and China National Petroleum Corporation. To prove Emperor Company's breach of contract, Longba Company and Zhongshi Uni-President Company submitted a color leaflet. The leaflet has the words "Zhanlong Motorcycle Uni-President Xinji's sole general agent", in the middle there are the words "Tongyi Lubricant China Famous Trademark" and eight physical photos of "Tongyi" lubricant products with prices arranged side by side. , the lower part has the words "Tongshi Motorcycle Lubricating Oil Series" and eleven physical photos of "Tongshi" lubricating oil products with prices. The price of "Tongshi" lubricating oil products listed on the leaflet is lower than the price of "Tongyi" lubricating oil products. The leaflet did not indicate the printing unit, time and other information. Emperor Company does not recognize the authenticity of the evidence and denies that it has made any negative publicity. "Tongyi" lubricating oil is a product of Emperor Company, and "Tongshi" lubricating oil is a product of Longba Company and Sinopec Tongyi Company.

Separately, during the lawsuit, Emperor Company’s subject qualifications were cancelled, and its claims and debts were borne by Uni-President Company. The name of Uni-President Company was changed to "Shell Uni-President (Beijing) Petrochemical Co., Ltd." (i.e. Shell Uni-President Company) after approval by the Beijing Municipal Administration for Industry and Commerce. Shell Uni-President Company applied to continue to participate in this lawsuit as the successor to the creditor's rights of Emperor Company.

The above facts are supported by evidence such as the "Cooperation Agreement", "Supplementary Agreement", leaflets, Emperor Company's cancellation registration information, unified company name change notice, and statements of the parties.

This court believes that the "Cooperation Agreement" and its "Supplementary Agreement" involved in the case signed on September 23, 2003 by Emperor Company, Uni-President Company, Longba Company and Sinopec Uni-President Company were the true expressions of intention of all parties. , and its content does not violate the mandatory provisions of laws and administrative regulations, the agreement involved should be deemed legal and valid, and all parties should perform their contractual obligations in accordance with the agreement.

As for the "Tongyi" and "Tongshi" lubricant product leaflets submitted by Longba Company and Sinopec Uni-President Company, there is no information about the publisher on the leaflets and Emperor Company has no doubts about its authenticity. It is denied that Longba Company and Sinopec Uni-President Company have no other evidence to prove that the leaflet was issued by Emperor Company. Therefore, the leaflet and the prices of the two lubricant products "Uni-President" and "Tongshi" cannot be relied upon alone. It was determined that Emperor Company had conducted negative publicity prohibited by the agreement involved.

Based on this, Longba Company's appeal that Emperor Company breached the contract lacked basis and was not supported by this court.

Diwang Company disclosed the content of the agreement involved in the case to its authorized agent because Longba Company and Sinopec Uni-President Company failed to fulfill their agreed obligations and took measures to claim their contractual claims through litigation. The original judgment regarding Emperor Company’s The determination that the above-mentioned behavior does not constitute a breach of contract is correct. Longba Company’s appeal has no basis in law and will not be supported by this court.

During the litigation of this case, Emperor Company was deregistered, and its rights and obligations were assumed by Uni-President Company. After Uni-President Company changed its name to Shell Uni-President Company, it continued to participate in the litigation as the successor of the creditor's rights enjoyed by Emperor Company, which is in compliance with my country's Civil Procedure Law stipulations are recognized by this court.

To sum up, the original judgment found the facts clearly and applied the law correctly, so it should be upheld. The rights and obligations of Emperor Company in the original judgment were borne by Shell Unified Company. Longba Company's appeal lacks basis and this court will not support it. In accordance with the provisions of Article 153, Paragraph 1, Item (1) of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:

The appeal is dismissed and the original judgment is upheld.

The first-instance case acceptance fee is 11,510 yuan, which is jointly borne by Beijing Longba Lubricant Co., Ltd. and Beijing Zhongshi Uni-President Lubricant Co., Ltd. *** (already paid); the second-instance case acceptance fee is 11,510 yuan, and is borne by Beijing Longba Lubricant Co., Ltd. is responsible for the payment (already paid).

This judgment is final.

Presiding Judge Zhang Bing

Acting Judge Zhong Ming

Acting Judge Jiao Yan

April 2007 Clerk Chi Yana