Keywords: documentary evidence, order, proof of obstruction, consequences of litigation
1. Oakes was ordered to pay Gree 40 million in tort damages
1. (2018) Yue Min Zhong No. 1196 Zhuhai Gree Electric Appliance Co., Ltd. and Ningbo Oaks Air Conditioning Co., Ltd. Civil Judgment of Second Instance on Infringement of Utility Model Patent Rights
Original text of the verdict:
The focus of the dispute in the second instance of this case was: 4. Whether the amount of compensation determined by the first-instance judgment was reasonable
(1) (1) Whether the scope of the audit compensation and the basis for calculating the compensation are reasonable, and (2) whether there is any obstruction of evidence by Aosheng Company............
To sum up, in order to prove the benefits obtained by Aosheng Company due to the infringement, Gree Company provided the statistical data of the number of sales and sales of the allegedly infringing products by a third party, the statistical data of the number of sales evaluations of the allegedly infringing products by Jingdong Mall, and the statistical data of the revenue or profit shown in the 2016 financial annual report of the major air-conditioning manufacturers, and other evidence, which can preliminarily calculate the benefits obtained by Aosheng Company due to the infringement. According to Gree's claims and the evidence provided, the total online sales of the eight models of the allegedly infringing products from April 2016 to April 2018 were 1.376 billion yuan. The data on which the sales are calculated are mainly from mainstream e-commerce platforms, and do not include the sales of the allegedly infringing products sold on Aosheng's official website or offline stores. Under the circumstance that the court ordered Aosheng to submit the relevant account books and materials within a time limit, Aosheng only submitted the sales of some of the alleged infringing products in some areas of Jingdong Mall, and refused to submit complete and comprehensive account books and materials of the alleged infringing products without justifiable reasons, so that its actual infringement profits could not be ascertained, and it should bear the burden of obstructing evidence. Based on Gree's claims and the evidence provided, the court can determine the benefits obtained by Aosheng Company as a result of the infringement. On the basis of the scale of the infringement reflected in the above calculation results, especially on the basis of the net profit of Aosheng from the sale of the allegedly infringing products exceeding RMB 50 million based on the net profit margin of Aosheng Company's self-admitted net profit margin, this court comprehensively considered the contribution of the patented technology in the product profits, the nature of Aosheng's infringement, the subjective state of Aosheng's infringement, and Factors such as Gree's reasonable expenses for rights protection, especially considering that Aosheng Company had infringed the same patent of Gree Company many times, and even continued to manufacture and sell products infringing Gree's patent rights in this case even after the infringement judgment made by the people's court took effect, the subjective intent of the infringement was obvious, and the court of first instance ruled that the compensation of 40 million yuan claimed by Gree Company had a factual and legal basis and could be maintained.
The original text of the civil judgment is 47,000 words, so I will not repeat it, but please refer to the (2018) Yue Min Zhong No. 1196 Civil Judgment for details.
2. Lawyer analysis
Everyone has a different level of understanding of the law, the importance of evidence, and the ability to preserve and fix evidence. In a civil litigation case, the resources of civil evidence are bound to be limited due to the objective conditions on which the facts depend. In addition, the subject of custody of evidence and the reasons for its formation are different, and the evidence is not evenly and equally in the hands of each party. Evidence favorable to one party may be held by the other party, and this state of uneven distribution of civil evidence is called evidence bias in evidence jurisprudence.
As a party to the litigation claim, the plaintiff bears the burden of proof, that is, it must submit the corresponding evidence, which is the factual basis to prove that the litigation claim it asserts can be established. If the evidence adduced by the plaintiff cannot meet the general standard of proof of "high probability" in civil litigation, and the truth is unclear or the facts to be proved cannot be established, the plaintiff will face the adverse consequences of losing the case. The defendant who does not bear the burden of proof also has the obligation and responsibility to assist the judge in ascertaining the facts of the case from the perspective of the necessity of refuting the other party's litigation claims, presenting new facts, and participating in debate.
If the defendant, as a party who does not bear the burden of proof, intentionally or negligently acts or omissions to prevent the party bearing the burden of proof from presenting (or further producing) evidence, so that the facts to be proved have no evidence to prove, or the truth or falsity of the facts to be proved is unclear, it constitutes an obstruction of evidence, and the consequence of presumption that the facts to be proved asserted by the party bearing the burden of proof are established.
In the above-mentioned case, because the defendant Oakes refused to submit the complete and comprehensive account books and materials of the alleged infringing products (documentary evidence submission order) without justifiable reasons, so that its actual infringement profits could not be ascertained, the Guangdong Provincial High Court held that it should bear the burden of proof obstruction (determined that it constituted proof obstruction), and combined with other evidence, it was determined that the plaintiff's claim for 40 million yuan of damages was established.
2. Order for the submission of documentary evidence
1. Documentary evidence to submit an order
According to Article 112 of the Judicial Interpretation of Civil Procedure [2015] No. 5 of the Legal Interpretation, where documentary evidence is under the control of the opposing party, the party bearing the burden of proof may apply in writing to the people's court to order the other party to submit it before the expiration of the time limit for presenting evidence. Where the opposing party refuses to submit it without a legitimate reason, the people's court may find that the content of the documentary evidence asserted by the applicant is true.
2. Conditions for applying for an order based on documentary evidence
According to Article 45 of the New Evidence Provisions, where a party applies to the court to order the other party to submit documentary evidence, the following conditions shall be met:
(1) The name or content of the documentary evidence to be submitted, the facts that need to be proved by the documentary evidence and the importance of the facts, and the reasons why the documentary evidence should be submitted;
(2) there is a basis for the opposing party to control the documentary evidence;
(3) Before the expiration of the time limit for presenting evidence, a written application shall be made.
Where the opposing party denies control of the documentary evidence, the people's court shall, on the basis of factors such as legal provisions and customs, and in consideration of the facts and evidence of the case, make a comprehensive judgment on whether the documentary evidence is under the control of the opposing party.
3. The conditions for the "certificate to submit an order" shall be approved
Where the documentary evidence submitted by a party is clear, the documentary evidence is necessary to prove the facts to be proved, the facts to be proved have a substantial impact on the outcome of the judgment, and it can be proved that the documentary evidence is under the control of the opposing party, the people's court shall permit it.
According to Article 47 of the New Evidence Provisions, the party in control of documentary evidence shall submit documentary evidence under any of the following circumstances:
(1) Documentary evidence that has been cited in the litigation by the party in control of the documentary evidence;
(2) documentary evidence produced for the benefit of the opposing party;
(3) documentary evidence that the opposing party has the right to inspect or obtain in accordance with the provisions of law;
(4) Account books and original vouchers for bookkeeping;
(5) Other circumstances where the people's court deems it necessary to submit documentary evidence.
Where the documentary evidence listed in the preceding paragraph involves state secrets, commercial secrets, the privacy of the parties or third parties, or there are circumstances that shall be kept confidential by law, it must not be publicly debated after submission.
4. The consequences of refusing to obey the "order to present documentary evidence".
(1) Consequences of litigation
According to Article 48 of the New Evidence Provisions, if the party in control of the documentary evidence refuses to submit the documentary evidence without justifiable reasons, the people's court may determine that the content of the documentary evidence asserted by the opposing party is true.
Where the party controlling the documentary evidence has the circumstances provided for in article 113 of the "Supreme People's Court's Interpretation on the Application of the Civil Procedure Law of the People's Republic of China", the people's court may find that the other party's claim that the facts proved by the documentary evidence are true.
*Attached is the New Judicial Interpretation of Civil Procedure
Article 112: Where documentary evidence is under the control of the opposing party, the party bearing the burden of proof may apply in writing to the people's court to order the opposing party to submit it before the expiration of the time limit for presenting evidence.
Where the reasons for the application are sustained, the people's court shall order the opposing party to submit it, and the applicant shall bear the costs incurred in submitting documentary evidence. Where the opposing party refuses to submit it without a legitimate reason, the people's court may find that the content of the documentary evidence asserted by the applicant is true.
(2) Other legal consequences
Article 113: Where a party in possession of documentary evidence destroys the relevant documentary evidence or commits other acts that make it impossible to use the documentary evidence for the purpose of obstructing the other party's use, the people's court may, in accordance with article 111 of the Civil Procedure Law, impose a fine or detention on him.