"Tencent - Lao Ganma" incident ending｜Talking about the epithet of the agency

Introduction of the "Tencent-Lao Gan Ma" Incident

On July 10, 2020, Tencent's official microblog released a joint statement saying that it had shaken hands with Lao Gan Ma and had applied to the court to withdraw its application for property preservation and the lawsuit in the case. The battle between the Internet giant and the national brand has come to an end.

(Figure 1 from Tencent's official microblogging)

A wave of twists and turns in the plot, the facts of the case are confusing, this stormy event has been the end of the whole drama, but its process involves a typical legal issues, I think it is necessary to be discussed. This article is to extract which involves the problem of representation to be analyzed, before that, let us first review the event of all the veins.

According to the relevant provisions of China's apparent agency system, if the behavior of the three suspects meets the constitutive elements of apparent agency, then Lao Ganma still needs to fulfill the obligations agreed in the cooperation agreement and pay the corresponding advertising costs. This means that even if Tencent is deceived, it will not necessarily suffer economic loss.

Representative Agent System

(A) Legal Provisions

According to the above table, the provisions of the Civil Code on the system of representative agents have not been substantially modified compared with the Contract Law.

In addition, apparent agency has similarity with the narrow sense of unauthorized agency, that is, the actor does not have the right of agency, exceeds the right of agency, or his right of agency has been terminated. The difference between the two is mainly reflected in the following two points.

(b) the constitutive elements of apparent agency

The Supreme People's Court on the current situation of the trial of civil and commercial contract disputes on a number of issues of the guiding opinion of the case:

Article 49 of the contract law provides for the system of apparent agency not only requires that the agent's behavior of the agent's powerlessness to objectively form the appearance of agency right, but also requires that the agent's behavior of the agent's powerlessness to objectively form the appearance of agency right. The system of apparent agency under Article 49 of the Contract Law not only requires that the agent's act of unauthorized agency objectively creates the appearance of having the right of agency, but also requires that the relative subjectively believe in good faith and without fault that the actor has the right of agency. Contract relative claim constitutes apparent agency, should bear the burden of proof, not only should prove the existence of agency behavior, such as contract, official seal, seal and other objective appearance of agency form elements, and should prove that it is in good faith and without negligence to believe that the perpetrator has the right of agency.

According to the above provisions, it can be seen that the elements of apparent agency:

1, the actor does not have the right of agency, beyond the right of agency or the right of agency has been terminated;

2, the actor's unauthorized agency behavior in the objective formation of the appearance of the right of agency;

3, the relative subjectively in good faith and without negligence to believe that the perpetrator of the right of agency.

Analysis of the Disputed Points of the Incident

Combined with the existing information, the author believes that the disputed points of the "Tencent-Lao Gan Ma" incident are mainly reflected in the following two aspects.

(a) Whether the perpetrator forged the seal and signed the agreement constitutes apparent agency?

According to Article 41 of the Minutes of the National Court Civil and Commercial Trial Work Conference (the "Minutes"), in judicial practice, a contract signed in the name of the agent by a person who forged a seal is not ipso facto invalid. On the contrary, if the actor's behavior meets the constituent elements of apparent agency, his agency behavior should be valid regardless of the authenticity of the seal used. (The legal effect of the fake seal can be seen on behalf of the Lili lawyer "trial of the new point of view of the legal representative of the fake seal, the contract is valid?

The following is a typical case to further explain.

Case 1 in (2015) Min Shen Zi No. 3402 case, Liang Mou and A company from 2009 to 2012, there is a dependency relationship, during the period of Liang Mou A company has undertaken the name of the A project, the A company issued a power of attorney to Liang Mou.

In addition, Liang also in the name of A company to undertake the construction of B project, A company to be recognized later and the actual exercise of the management of the project, so Liang and A company for the B project still constitutes a dependency relationship.

November 16, 2010, Liangmou for the construction of project B in the name of company A and Bai signed a "lease contract". company A claimed that the "lease contract" on the A company and the project department of the seal of the B project are Liangmou privately engraved, not on behalf of the true meaning of the contract should be invalid.

But the supreme court held that, because Liang and A company relationship between the existence of dependency, enough to make the white reason to believe that the authenticity of the seal and Liang was authorized by the A company, so Liang's behavior constitutes a representation, the consequences of its behavior should be borne by the A company. A company claimed that the lease contract is invalid, it should not bear the corresponding consequences of the law has no legal basis.

In the case of "Tencent - Lao Gan Ma", according to the briefing issued by the Guiyang Public Security Bureau Shuanglong Branch, only the fact that the perpetrator forged the seal of Lao Gan Ma and pretended to be the manager of the marketing department of the company can be concluded, and there is no way to know whether there is any other relationship between the perpetrator and Lao Gan Ma.

In addition, Tencent's legal department is known as "Nanshan Pizza Hut", and it is hard to believe that the perpetrator could have been caught in a trap designed by the perpetrator with just a forged seal.

(2) Is Tencent subjectively in good faith and without negligence?

Article 14 of the Guiding Opinions of the Supreme People's Court on Several Issues Concerning the Trial of Civil and Commercial Contract Dispute Cases under the Current Circumstances:

The people's court shall, in determining whether the contractual counterparty is subjectively bona fide and free from negligence, take into account the factors in the process of concluding and fulfilling the contract, and comprehensively determine whether the contractual counterparty has fulfilled its duty of reasonable care. In addition to the time of conclusion of the contract, in whose name the signature, whether there is a seal and seal authenticity, the subject matter of the delivery method and location, the purchase of materials, leasing equipment, the use of borrowed money, whether the construction unit is aware of the project manager's behavior, whether to participate in the performance of the contract and other factors, to make a comprehensive analysis and judgment.

The following is a typical case to further illustrate.

Case 2 in the (2013) Min Tizi No. 95 case, the key to the trial is whether Tan can represent Bank A, that is, whether Tan constitutes a representation when negotiating with the relative Li Mou deposit matters.

The Supreme Court pointed out that the relator in good faith and without negligence should contain two meanings: First, the relator believes that the agent's behavior belongs to the agent's authority; second, the relator is not negligent, that is, the relator has paid sufficient attention, but still can not deny the actor's right to representation.

In the case, the relative Li Mou in the process of negotiating with Tan Mou deposits, in the following aspects of the duty of reasonable care negligence:

First, the Tan Mou president of the identity of the unverified gullible. Tan received Li Mou did not in the Bank of A office, but in the office of the bank branch, as the "president" of Tan Mou personally take Li Mou to the counter for "deposit" business, Li Mou because of negligence, Tan Mou as the "president" does not conform to the routine.

Secondly, Li was not suspicious of the many irregularities that existed in the deposit process. Such as Li as a depositor should know that the bank counter for business, the need to indicate to the teller business matters, but did not make deposits in the counter transactions, etc.;

Third, Li subjectively with the pursuit of high interest rate violation of the intention. Li Mou on the perpetrator promised to give high interest did not have doubts, and did not check with Bank A. Therefore, the relative Li subjectively is not in good faith, does not meet the requirements of good faith no-fault elements of the apparent agent, Tan's behavior does not constitute an apparent agent .

Back to the "Tencent - Lao Gan Ma" incident, if Tencent in the signing of the cooperation agreement with the perpetrator, the existence of the perpetrator of the "market management department manager" identity without verification that gullible, or to the signing of the agreement in the process of the existence of unconventional operation did not have suspicion and did not report to Lao Gan Ma. The situation of suspicion and not to Lao Ganma verification, it is difficult to determine its duty of reasonable care, the behavior of the actor's unauthorized agent behavior is also difficult to constitute the apparent agent.

In addition, according to the latest joint briefing by the two sides, Tencent apologized and reported the contract fraud to the police, proving that the behavior of the actor's private seal signing the cooperation agreement does not constitute apparent agency, and that its legal consequences naturally have nothing to do with Lao Ganma.

Summary

The best way to get involved in this kind of hotspot is to be rational and learn from it.

1, in the signing of all kinds of agreements, the contracting party should be required to produce a legal representative or authorized representative of the documents signed in person, not just stamped with the official seal or contract seal;

2, in the process of signing the contract, if there is an irregularity (such as signing the place, signing the contract process does not comply with the trading habits, etc.), you should contact the

3, should be in the power of attorney and other similar documents on the authorization period and the authority of the agent, and in the relevant personnel to leave, should be timely release of authorization.

Link to the law

Article 41 of the "Nine People's Chronicle":

Judicial practice, some companies intend to carve two or even more sets of seals, and some legal representatives or agents or even privately engraved seals, and enter into a contract maliciously affixed non-recorded seals or fake seals, after a dispute, the legal entity with the official seal. Official seal, after the dispute legal person to stamp is a fake official seal on the grounds of denying the validity of the contract is not uncommon. The people's court in the case, the main review of the signatory in the seal when there is no representation or agency, so as to determine the validity of the contract according to the relevant rules of representation or agency.

The legal representative or his authorized person in the contract with the official seal of the legal person's behavior, indicating that it is in the name of the legal person to sign the contract, in addition to the "Company Law", Article 16 and other laws on its authority has special provisions of the situation, should be borne by the legal person of the corresponding legal consequences. The people's court shall not support the legal representative's denial of the validity of the contract on the grounds that the legal representative no longer has the right to represent the legal representative, the stamped seal is a fake seal, and the stamped seal is inconsistent with the official seal of the record.

Agent in the name of the agent to sign the contract, to obtain legal authorization. After the agent to obtain legal authorization, the contract signed in the name of the agent shall be liable by the agent. The agent to the agent has no right of agency after the fact, stamped with a fake seal, stamped with the official seal of the record is inconsistent with the reasons for denying the validity of the contract, the people's court does not support.

(This article was written by Liu Wanying, Shanghai University of International Business and Economics Law School graduate students)