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Overseas Chinese International Investment Company v. Changjiang Films Company (Dispute over Contract on License of the Right to Distribute Films)
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國際華僑公司訴長江影業公司影片發行權許可合同糾紛案
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【法寶引證碼】
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- Type of Dispute:
IPR--＞IPR Contract
- Legal document：
Judgment
- Judgment date：
01-17-2002
- Procedural status：
Trial at Second Instance
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| Overseas Chinese International Investment Company v. Changjiang Films Company (Dispute over Contract on License of the Right to Distribute Films) | | 國際華僑公司訴長江影業公司影片發行權許可合同糾紛案 |
| Civil Judgment of the Supreme People's Court | | 最高人民法院民事判決書 |
| No. 3 (2001) | | (2001)民三終字第3號 |
BASIC FACTS | | |
| Appellant (Plaintiff in the first instance): Guangzhou Overseas Chinese International Investment Company, domiciled at 21st Floor, Guozi Building, No. 363 Dongfeng Middle Road, Guangzhou. | | 上訴人(原審原告)：廣州國際華僑投資公司。 |
Legal Representative: Luo Guangsheng, manager of the Company. | | 法定代表人：羅廣生，該公司經理。 |
| Authorized Agent: Qiu Shengming, lawyer of Guangdong Justice Law Firm. | | 委托代理人：丘升明，廣東佳思特律師事務所律師。 |
| Authorized Agent: Feng Jun, lawyer of Guangzhou Z & T Law Firm. | | 委托代理人：馮駿，廣州正平天成律師事務所律師。 |
| Appellant (Defendant in the first instance): Jiangsu Changjiang Films Limited Liability Company, domiciled at No. 2 Huaihai Road, Nanjing. | | 上訴人(原審被告)：江蘇長江影業有限責任公司。 |
| Legal Representative: Li Shihang, board chairman of the Company. | | 法定代表人：李士行，該公司董事長。 |
| Authorized Agent: Guo Xiaohe, lawyer of Beijing Zhengping Law Firm. | | 委托代理人：郭小河，北京市正平律師事務所律師。 |
| Authorized Agent: Gu Yongzhong, lawyer of Tianda Law Firm. | | 委托代理人：顧永忠，天達律師事務所律師。 |
| With regard to the case under the dispute between Guangzhou Overseas Chinese International Investment Company (plaintiff in the first instance, hereinafter referred to as Investment Company) and Jiangsu Changjiang Films Limited Liability Company (defendant in the first instance, hereinafter referred to as Changjiang Company) over a contract on license of the right to distribute films, both Investment Company and Changjiang Company were dissatisfied with the No. 4 (1999) civil judgment of the Higher People's Court of Jiangsu Province (shortened as Jiangsu Higher Court hereafter), and appealed to the present court. After accepting the case, the present court formed a collegial panel according to the provisions of law, composed of Luo Dongchuan, associate director of the No. 3 civil division, as the presiding judge, judge Wang Yongchang and acting judge Zhang Hui, and then heard the case publicly on March 28, 2001. Later, the present court arranged for both parties to check the evidence on December 3, 4, 11, and 20, 2001 respectively. Wang Yanfang was the court clerk to make the records. Luo Guangsheng, legal representative of Investment Company, Qiu Shengming and Feng Jun, authorized agents of Investment Company, as well as Guo Xiaohe and Gu Yongzhong, authorized agents of Changjiang Company, appeared in the court and participated in the proceedings. The case has now been finalized. | | 原審原告廣州國際華僑投資公司(以下簡稱投資公司)與原審被告江蘇長江影業有限責任公司(以下簡稱長江公司)影片發行權許可合同糾紛一案，投資公司、長江公司均不服江蘇省高級人民法院(1999)蘇知初字第4號民事判決，向本院提起上訴。本院受理後，依法組成由民事審判第三庭副庭長羅東川擔任審判長，審判員王永昌、代理審判員張輝參加的合議庭，于2001年3月28日公開開庭審理了本案，後又于2001年12月3日、4日、11日、20日組織雙方當事人核對證據。法庭記錄由書記員王豔芳擔任。投資公司法定代表人羅廣生、委托代理人丘升明、馮駿，長江公司委托代理人郭小河、顧永忠到庭參加訴訟。本案現已審理終結。 |
| It was verified by Jiangsu Higher Court after trial that: | | 原審法院經審理查明： |
| (I) On the conclusion of contract and the contractual contents. Investment Company concluded an agreement with Nanjing Film Studio in August 1997, which sets forth that both parties shall cooperate with each other to shoot the film To Be Mother and Son Again in the Next Life (hereinafter referred to as Next Life), with the copyright to be owned by Investment Company, and Nanjing Film Studio shall take charge of determining the script of Next Life and submitting it to the competent department in charge and the State Film Administration for archival filing. Nanjing Film Studio held the “License for Film Production”. In May 1998, Investment Company and Changjiang Company reached an oral agreement after negotiation, setting forth that Investment Company licenses Changjiang Company to distribute and project the film Next Life in 13 cities in Jiangsu Province. The relevant contents in the agreement include: (1) the time period when the film Next Life is projected in Jiangsu shall be from May to the end of December1998. (2) The film ticket revenues shall be shared by both parties at a certain proportion. (3) Changjiang Company must inform Investment Company by fax of the last day's “Daily Report on Projection Performance” on the morning of the day following the premiere, and submit the financial statement to Investment Company within 3 days as of the end of every week. It shall also, within too weeks after the premiere, remit Investment Company's distributable revenues by telegraphic transfer into the designated account, and shall, within one week after the end of the distribution date, remit Investment Company's all shareable revenues into the designated account. (4) Changjiang Company must check the authenticity of the ticket revenues of the film Next Life as reported by the film companies and cinemas in all the cities and counties. If Investment Company finds any cinema or company which distributes or projects the film Next Life omits or conceals any ticket revenue, Changjiang Company shall bear the liability of making economic compensations to Investment Company at 10 times the omitted or concealed ticket revenues. In April 1999, Investment Company and Changjiang Company concluded a written “Contract on Film Distribution and Projection by Sharing Ticket Revenues”, confirming the oral agreement reached in May 1998, and then agreed upon the proportion for sharing the ticket revenues, stipulating that Investment Company may take 32% and Changjiang Company 68%. | | (一)關于合同簽訂情況及合同約定內容。投資公司1997年8月與南京電影制片廠簽訂協議書，約定雙方合作拍攝影片《下輩子還做母子》(以下簡稱《下》片)，著作權歸投資公司所有，南京電影制片廠負責《下》片劇本審定並上報主管部門和國家電影局備案。南京電影制片廠持有《攝制電影許可證》。1998年5月投資公司與長江公司經協商達成口頭協議，約定投資公司許可長江公司在江蘇省13個市發行放映《下》片。與本案相關的協議內容有：1．《下》片在江蘇的放映時間為1998年5月至同年12月底。2．影片票房收入雙方按比例分成。3．長江公司須在首映之日起的次日上午用傳真向投資公司通報前日“映出成績日報表”，財務報表應于每周結束的三日內報送投資公司，並于上映兩周後將投資公司應得的分成收入金額以電彙方式彙入指定帳戶，發行日期結束後的一周內，將投資公司應得所有分成彙人指定帳戶。4．長江公司須檢查各市、縣電影公司和影院上報《下》片票房收入的真實性，如經投資公司查出發行放映《下》片的影院或公司有漏、瞞報票房收入，由長江公司按漏、瞞報票款的10倍對投資公司承擔經濟賠償責任。1999年4月投資公司與長江公司簽訂書面《影片票房分帳發行放映合同》，對1998年5月口頭協議予以確認，並進而對票房收入分成比例達成合意，約定投資公司分成32％、長江公司分成68％。 |
| It was further verified that: Article 3 of the 1995 “Interim Provisions on Film Transactions” of the Ministry of Radio, Film and Television prescribes: “Any seller who participates in film transactions must hold a license issued by the government administrative department for film production or distribution”. However, Investment Company did not have the license issued by the governmental department for film production or distribution. | | 另查明：國家廣播電影電視部1995年《影片交易暫行規定》第三條規定：“凡參與影片交易的賣方必須持有政府管理部門頒發的制片或發行許可證”。投資公司不具有政府部門頒發的制片許可證、發行許可證。 |
| (II) On the performance of contract by Changjiang Company. From May to the end of December 1998, Changjiang Company distributed and projected the film Next Life in Jiangsu Province. In January 1999, Changjiang Company made a consolidated “Statement of Analysis of Film Projection Performance in Jiangsu Province for Sharing Revenues” and “Statement of Analysis of Accumulative Projection Performance in Jiangsu Province” on the basis of the “Daily Reports on Projection Performance” and “Statements of Settlement of Projection Revenues” as reported by the film companies in each city or county of Jiangsu Province regarding the film Next Life, and the total amount of the ticket revenues of the film Next Life all over the province added up to 1,337,081.40 Yuan. Changjiang Company submitted to Investment Company in that month the two consolidated statements along with some “Statements of Settlement of Projection Revenues” and “Daily Reports on Projection Performance” submitted by the cities and counties concerned. After that, the film companies in some cities and counties made up the report of ticket revenues, and Changjiang Company found that the fabricated ticket revenues added up to 40,012 Yuan, but did not inform Investment Company of the fabricated ticket revenues. Jiangsu Higher Court verified after checking the above-mentioned statements in the trial that: since the proportions for the film companies in some cities and counties to share the revenues by themselves were erroneous and Changjiang Company had to infer partial ticket revenues backward, the provincial total amount of ticket revenues calculated by Changjiang Company was different from the total amount of ticket revenues actually reported by all the cities and counties. Throughout the province, there were 45 cities and counties reporting ticket revenues, and the actually reported total amount of ticket revenues was 1,389,190.40 Yuan, including student ticket revenues and adult ones. Changjiang Company submitted 1,337,081.40 Yuan of total amount of ticket revenues to Investment Company, 52,109 Yuan less than the total amount of ticket revenues actually reported by all the cities or counties, i.e., 1,389,190.40 Yuan. Among the 52,109 Yuan, 9,429 Yuan was not included by Changjiang Company into the total amount of ticket revenues, but the statements had been submitted by relevant cities and counties to Investment Company. Changjiang Company totally paid 150,000 Yuan to Investment Company by twice, in November 1998 and April 1999, respectively. On June 28, 1999, Changjiang Company sent a letter to Investment Company, saying: the ticket revenues of the film Next Life in Jiangsu added up to 1,337,081.40 Yuan, and Investment Company may share 387,937.20 Yuan; Changjiang Company has paid 150,000 Yuan, and the remaining 237,937.20 Yuan shall be paid off by the end of October 1999. After receiving that letter, Investment Company brought a lawsuit to Jiangsu Higher Court on July 6, 1999. | | (二)關于長江公司履約情況。1998年5月至12月底，長江公司在江蘇省發行放映《下》片。1999年1月，長江公司根據江蘇省各市、縣電影公司上報的《下》片《映出成績日報表》、《放映收入結算表》，彙總制作《分帳影片江蘇省映出成績指標分析表》、《江蘇省映出成績累計分析表》，統計全省《下》片票款總額為1337081．40元。長江公司當月將該兩份彙總報表連同市縣報送的部分《放映收入結算表》、《映出成績日報表》報送投資公司。之後部分市縣電影公司補報票款，長江公司對補報票款統計為40012元，但未將該補報票款告知投資公司。原審法院審理中對上述各類報表核對查明：因一些市縣電影公司自行提成比例有誤，長江公司對部分票房收入予以倒推，因而長江公司統計的全省票款總額與各市、縣實際上報的票款總額不符。全省先後共有45個市縣上報票款，實際上報票款總額1389190．40元，該總額中包含學生和成人票款。長江公司報送投資公司的票款總額1337081．40元，與各市、縣實際上報票款總額1389190．40元之間相差52109元。52109元中有9429元，長江公司雖未統計在票款總額內，但已將相關市縣報表報送投資公司。長江公司于1998年11月、1999年4月兩次共向投資公司支付分成款15萬元。1999年6月28日長江公司致函投資公司稱：《下》片在江蘇的票房收入合計為1337081．40元，投資公司應得387937．20元，長江公司已付15萬元，剩余237937．20元于1999年10月底前付清。投資公司接此函後于1999年7月6日向原審法院提起訴訟。 |
| (III) On Investment Company's provision of evidence and the court's verification of the facts. During the court proceedings, Investment Company submitted to Jiangsu Higher Court 1095 questionnaires filled out by schools in Jiangsu Province. It was found after verification that the questionnaires were sourced from an investigation activity carried out by the relevant department by sending letters to the primary and high schools all over the province. The purpose of the investigation was to assist the National Commission for Coordination of Film and Television Education for Primary and High School Students in researching the ideas of the students in Jiangsu Province and their parents after they saw the film Next Life. Each questionnaire had a column on film ticket fare, and they were required to write down the ticket fare. Among the 1095 questionnaires, more than 300 were filled out by schools and were then directly sent to designated addresses, while the remaining were collected by the staff dispatched by Investment Company to the schools. Some questionnaires even proposed the schools to fabricate higher ticket revenues. It was verified after examination that, among the 1095 questionnaires provided by Investment Company, the 15 schools in Hai'an County were determined as irrelevant with the present case due to the time of seeing the film. Jiangsu Higher Court's investigation on partial schools in Hai'an County also proved this fact. Hence the 15 items of evidence should have no probative force to the facts of the present case. The schools involved in the remaining 1080 questionnaires were located in 60 cities and counties all over the province. Upon the investigations made by Jiangsu Higher Court by entrusting relevant courts, by itself and by letter investigations, as well as Changjiang Company's acknowledgement of the 18 questionnaires, the facts on seeing the film and the amount of ticket revenues were found to have been verified in 852 schools, while for 228 schools, the facts on seeing the film or the actual amount of ticket revenues were unable to be verified due to the revocation of the schools, the leaving of the parties concerned, the inability to find original attestations, or other causes. Jiangsu Higher Court compared the verified facts on seeing the film in the 852 schools with the questionnaires submitted by Investment Company, and the result showed that: 282 schools denied seeing the film, the ticket revenues answered by 430 schools were less than those on the questionnaires, the ticket revenues answered by 79 schools equaled those on the questionnaires, and the ticket revenues provided by 61 schools were more than those on the questionnaires. As verified by the court, the total amount of ticket revenues of the 852 schools was 1,134,699.85 Yuan, while the said amount of ticket revenues asserted by Investment Company was 2,751,178.10 Yuan. The former was approximately 41% of the latter. Jiangsu Higher Court compared the ticket revenues of the 852 schools with the ticket revenues reported by in the film companies in the cities and counties, and the result showed that: as verified by the court, the student ticket revenues of 6 counties, namely, Jiangning, Dantu, Hongze, Huai'an, Lianshui and Donghai, were 29,088.20 Yuan, but the film companies in the said 6 counties never reported any ticket fare. Jiangsu Higher Court verified that the student ticket revenues of 19 cities and counties, namely, Changshu, Wuxian, Zhangjiagang, Jiangyin, Xishan, Jintan, Wujin, Danyang, Yangzhong, Yangzhou, Jiangdu, Jianhu, Jinhu, Lianyungang, Suqian (including Suyu), Qiuhong, Jingjiang, Taixing, Xinghua, were 231,892.65 Yuan higher than the total student and adult ticket revenues reported by the film companies in the said 19 cities and counties. | | (三)關于投資公司舉證及法院查證情況。訴訟中投資公司向原審法院提交江蘇省1095份學校填寫的調查表。經查，調查表源于有關部門向全省中小學校發函而進行的一項調查活動，調查目的是協助全國中小學生影視教育協調工作委員會對江蘇省學生和家長觀看《下》片情況進行調研，調查表中含有電影票款欄，並要求寫明票款。該1095份調查表的300余份是學校填寫後直接寄往指定地點，其余由投資公司派員到各學校收取，有的還要求學校盡量多填寫票款額。經審查，投資公司提供的1095份調查表中海安縣15所學校從觀影時間上排除了與本案的關聯，原審法院對其中部分學校的調查也證實了此點，該15份證據對本案事實無證明力。其余1080份調查表所涉學校分布在全省60個市縣，經原審法院委托相關法院調查、自行調查、發函調查以及長江公司對18份調查表的認同，852所學校觀影情況及票款數額已經查明，228所學校因學校撤銷、當事人調離、原始憑證無法查找或其他原因，無法查明實際觀影情況或實際支出票款數額。原審法院將查明的852所學校觀影情況與投資公司提交的調查表進行對比的結果為：否定觀看的有282所學校、票款小于調查表的有430所學校、票款等于調查表的有79所學校、票款大于調查表的有61所學校。法院查明852所學校票款總額為1134699．85元，而投資公司主張中相應學校的票款額為2751178．10元，法院查明額約占投資公司主張額41％。原審法院將852所學校票款與市縣電影公司上報票款進行對比的結果為：法院查明江甯、丹徒、洪澤、淮安、漣水、東海等6縣有學生票款29088．20元，而該6縣電影公司未上報任何票款；原審法院查明常熟、吳縣、張家港、江陰、錫山、金壇、武進、丹陽、揚中、揚州、江都、建湖、金湖、連雲港、宿遷(含宿豫)、泅洪、靖江、泰興、興化等19市縣的學生票款比該19市縣電影公司上報的學生和成人合計票款高出231892．65元。 |
PROCEDURAL POSTURE | | |
| Jiangsu Higher Court held that: | | 原審法院認為： |
| (I) On the effectiveness of the contract. The contract concluded between Investment Company and Changjiang Company was a contract on the license of the right to distribute films, and was lawful and effective. Changjiang Company demurred that the contract was null and void as Investment Company had no license for film distribution. Jiangsu Higher Court held that, the copyright of the film Next Life lawfully owned by Investment Company should be protected by the “Copyright Law of the People's Republic of China”. The purpose of the provisions in the “Interim Provisions on Film Transactions” on the requirement for film distributors to hold their licenses for film production or distribution is to guarantee the state's interference with and control over the stage of film production or distribution. In the present case, although Investment Company had no license for film production or film distribution, it was merely at an intermediate stage between film shooter and film distributor, and it itself did not directly shoot or distribute the film. The film Next Life was shot by Nanjing Film Studio who held the license for film production, so the film production was under the control of the state; meanwhile, Changjiang Company who was licensed to distribute the film Next Life held the license for film distribution, so the distribution was also under the control of the state. Hence Investment Company's conclusion of the contract did not violate the tenet of the “Interim Provisions on Film Transactions”. Therefore, Changjiang Company's ground for demurral that the contract was null and void should not be tenable. | | (一)關于合同效力。投資公司與長江公司雙方簽訂的合同系影片發行權許可合同，該合同合法有效。長江公司抗辯稱，由于投資公司沒有發行許可證，所以合同無效。原審法院認為，投資公司合法擁有的《下》片著作權，受《中華人民共和國著作權法》保護。《影片交易暫行規定》中關于影片發行交易賣方需持有制片或發行許可證之規定的目的，是為了保證國家對影片制片、發行環節的幹預、控制。本案中，投資公司雖無影片攝制與發行許可證，但其只是影片拍攝者與發行者之間的一個中間環節，其本身並未直接進行影片拍攝或發行。《下》片的拍攝行為由持有攝制許可證的南京電影制片廠所為，制片環節已受到國家控制；《下》片被許可的發行方長江公司持有發行許可證，發行環節也可受到國家控制，投資公司的簽約行為因而不違反《影片交易暫行規定》精神。因此，長江公司關于合同無效的抗辯理由不成立。 |
| (II) On whether there was omission or concealment of ticket revenues and how to ascertain the omitted or concealed ticket revenues. The total amount of ticket revenues of the film Next Life, which was submitted by Changjiang Company to Investment Company, was 52,109 Yuan less than that actually reported by all the cities and counties. Among the said difference, 9,429 Yuan was not caused by omission, because: although Changjiang Company did not count the 9,429 Yuan into the total amount of ticket revenues, it had submitted the statements of the relevant cities and counties to Investment Company, and Investment Company could check such statements to find any omission. The 9,429 Yuan should be ascertained as uncalculated revenues to be shared, and Changjiang Company should pay 2,771 Yuan to Investment Company at the proportion. As for the remaining 42,680 Yuan, Changjiang Company neither counted it into the total amount of ticket revenues, nor submitted statements about the cities and counties, thus it should be ascertained as ticket revenues omitted or concealed by Changjiang Company. According to the facts verified by the court about the 852 schools, Jiangning and other 5 counties omitted 29,088.20 Yuan of ticket revenues, and the actual amount of ticket revenues was 231,892.65 Yuan higher than that reported by the film companies in 19 cities and counties including Changshu, so a total amount of 260,980.85 Yuan should be ascertained as the ticket revenues omitted or concealed by the film companies in all the cities and counties. Since among the 1080 schools, the facts of some schools on seeing the film were, due to various reasons, unable to be verified, or the amount of their ticket revenues was unable to be determined. Moreover, the comparison on omission and concealment was made by the court between the verified student ticket revenues and the total student and adult ticket revenues reported by all the cities and counties. Therefore, it should be reasonably deduced that some cities and counties omitted or concealed the other 50,000 Yuan of ticket revenues. On the basis of the three sums of omitted or concealed ticket revenues, totaling 353,660.85 Yuan, specifically, 42,680 Yuan omitted and concealed by Changjiang Company, the verified 260,980.85 Yuan omitted and concealed by the cities and counties, and 50,000 Yuan deduced to have been omitted and concealed by the cities and counties, it should be ascertained that Changjiang Company breached the contract. Therefore, Investment Company's litigation claim on Changjiang Company's breach of the contract was tenable. Investment Company thought that the ticket revenues omitted or concealed within Jiangsu Province reached several million Yuan, but the 1095 questionnaires it provided were neither corroborated with any original invoice, nor consistent with the actual facts verified by the court, hence they should not be adopted as effective evidence. Therefore, the omitted or concealed amount as asserted by Investment Company could not be tenable due to insufficiency of evidence. | | (二)關于是否存在漏瞞報事實及漏瞞報票款的認定。長江公司向投資公司報送的《下》片票款總額與各市、縣實際上報的票款總額之間相差52109元。其中的9429元不屬于漏報，理由是：長江公司雖未將該9429元統計在票款總額內，但已將相關市縣報表報送投資公司，投資公司可以核對發現漏報。該9429元應認定為未計算提成，長江公司應當向投資公司支付提成款2771元。其余42680元，長江公司既未統計在票款總額內，也未報送市縣報表，應認定為長江公司漏瞞報票款。根據法院對852所學校查明的事實，江甯等6縣未報票房收入29088．20元、常熟等19市縣高于電影公司所報票房收入的231892．65元，共計260980．85元應認定為各市、縣電影公司漏瞞報票款。由于1080所學校中尚有部分學校因各種原因無法查明觀影情況或無法確定票款數額，以及法院所作的漏瞞報對比是在法院查明的學生票款與各市、縣上報的學生和成人合計票款間進行，應當合理推定相關市縣另外漏瞞報票款5萬元。依據上述長江公司漏瞞報42680元、查明市縣漏瞞報260980．85元、推定市縣漏瞞報5萬元，三項共計漏瞞報票款353660．85元，應當認定長江公司構成違約。因此，投資公司關于長江公司違約的訴訟主張成立。投資公司認為江蘇省內漏瞞報票款達數百萬元，但其提供的1095份調查表既無原始發票予以佐證、又與法院查明的實際情況明顯不符，因而不能作為有效證據使用。其主張的漏瞞報數額因證據不足而不能成立。 |
| (III) On the liabilities for breach of the contract due to omission and concealment of ticket revenues. Changjiang Company breached the contract due to its omission concealment of ticket revenues, and should bear the liabilities for breach of contract. Changjiang Company held that the liabilities for omission and concealment should be borne by those who omitted and concealed the ticket revenues. On this issue, Jiangsu Higher Court held that, although the ticket revenues were mainly omitted or concealed by the film companies in all cities and counties, and it was difficult for Changjiang Company to practically supervise such acts, the liabilities should still be borne by Changjiang Company according to Item (6) of Article 4 of the contract concluded between Investment Company and Changjiang Company. As for the liabilities for economic compensation at 10 times, which Investment Company required Changjiang Company to bear, Jiangsu Higher Court held that, the contract sets forth that Changjiang Company shall bear 10 times of compensation for the omitted or concealed ticket revenues found out by Investment Company, but the omitted or concealed amount provided by Investment Company was not true and involved some frauds; in the present case, the actually omitted or concealed amount was verified by the court instead of Investment Company, and moreover, in the present case, the compensation at 10 times did not conform to the principle in the Contract Law of China on compensating the actual losses. Therefore, the claim for compensation at 10 times should not be supported. On the basis of the liabilities for breach of the contract, which Changjiang Company should bear, and according to the principle of fairness, the amount of compensation for economic losses was determined at 5 times the omitted and concealed amount of ticket revenues, in other words, the amount at 5 times of the 353,660.85 Yuan ascertained by Jiangsu Higher Court, i.e., 1,768,304.25 Yuan, should be determined as the amount of compensation for economic losses. | | (三)關于漏瞞報票款的違約責任。長江公司對漏瞞報票款行為構成違約，應當承擔違約責任。長江公司認為漏瞞報責任應由漏瞞報者承擔，對此法院認為，雖然漏瞞報票款行為主要系各市、縣電影公司所為，長江公司客觀上對此難以監管，但根據投資公司與長江公司雙方所簽合同第4條第6項的約定，該責任仍應由長江公司承擔。關于投資公司要求長江公司承擔10倍經濟賠償的責任，法院認為，合同約定對投資公司查出的漏瞞報票款給予10倍賠償，而投資公司提供的漏瞞報數額並不真實，有弄虛作假行為；本案中的實際漏瞞報數額是由法院而非投資公司查出，且本案中按10倍賠償處理亦不符合我國合同法中的賠償實際損失原則，故對按10倍賠償的請求不予支持。基于長江公司確應承擔違約責任，依據公平原則，以漏瞞報票款額的5倍確定經濟損失賠償數額，即以法院認定的353660．85元的5倍數額1768304．25元作為經濟損失賠償額。 |
| (IV) On the ascertainment of the delayed payment and the liabilities for breach of the contract. Investment Company and Changjiang Company agreed upon the specific proportions for sharing the ticket revenues of the film Next Life by April 1999. As required by the time limit for payment in the “Contract on Film Distribution and Projection by Sharing Ticket Revenues”, the deadline for Changjiang Company to pay all Investment Company's distributable revenues should be May 7, 1999. However, Changjiang Company still failed to pay 237,937.20 Yuan after expiry of the time limit, and its subsequent proposition for modifying the time of payment was not agreed to by Investment Company. Therefore, Investment Company's litigation assertion that Changjiang Company's delayed payment constituted breach of contract was tenable, and Changjiang Company should pay 237,937.20 Yuan of unpaid ticket revenues to Investment Company. | | (四)關于遲延付款的認定及違約責任。投資公司與長江公司雙方對《下》片的分成具體比例至1999年4月達成合意，按照《影片票房分帳發行放映合同》付款期限的約定，長江公司支付全部分成款的最遲期限應當是1999年5月7日。長江公司在期限屆滿後仍有237937．20元未支付，其之後提出變更支付時間的主張也未獲得投資公司許可，因此投資公司關于長江公司遲延付款構成違約的訴訟主張成立，長江公司應當向投資公司支付未付款237937．20元。 |
| (V) Changjiang Company's omission and concealment of ticket revenues and its delayed payment were a breach of the contract, and did not constitute tort, hence Investment Company's litigation claim against Changjiang Company for making a public apology was short of legal basis, and should not be supported. | | (五)長江公司漏瞞報票款及遲延付款屬違約行為並不構成侵權，投資公司要求長江公司公開賠禮道歉的訴訟請求缺乏法律依據，不予支持。 |
To sum up, partial litigation claims of Investment Company were tenable and should be supported by the court. Jiangsu Higher Court adjudicated as follows in accordance with Article 10 and Article 47 of the former “Copyright Law of the People's Republic of China”, Article 4 and Article 111 of the “General Principles of Civil Law of the People's Republic of China”, Article 128 of the “Civil Litigation Law of the People's Republic of China”: (1) Changjiang Company shall pay 1,768,304.25 Yuan of compensation for economic losses to Investment Company. (2) Changjiang Company shall pay 2,771 Yuan of distributable revenues to Investment Company. (3) Changjiang Company shall pay 237,937.20 Yuan of unpaid money to Investment Company. All the above payment shall be paid within 30 days as of effectiveness of the present judgment. And (4) Investment Company's other litigation claims shall be rejected. As for the 86,199.69 Yuan of case acceptance fee, Investment Company shall bear 46,199.69 Yuan, and Changjiang Company shall bear 40,000 Yuan. | | 綜上，投資公司部分訴訟請求成立，法院予以支持。法院依照原《中華人民共和國著作權法》第十條、第四十七條，《中華人民共和國民法通則》第四條、第一百一十一條、《中華人民共和國民事訴訟法》第一百二十八條之規定，判決：(一)長江公司向投資公司支付經濟損失賠償款1768304．25元。(二)長江公司向投資公司支付提成款2771元。(三)長江公司向投資公司支付未付款237937．20元。上述支付款項，均于本判決生效之日起三十日內付清。(四)駁回投資公司其他訴訟請求。案件受理費86199．69元由投資公司負擔46199．69元，長江公司負擔4萬元。 |
| ．．．．．． | | 投資公司不服一審判決，向本院上訴稱：(一)一審判決對長江公司瞞報票房數額的認定錯誤。1．原審法院認定瞞報數額的方法錯誤。一審查證所得的1134699．85元票款，僅僅是江蘇省852所學校學生團體觀影的票房收入，與長江公司所報的全省成人觀眾觀影的票房收入沒有可比性。本案的准確處理在于查明《下》片在全省的票房收入，再與長江公司所報數字對比，以確定長江公司有無瞞報行為和具體的瞞報數額。2．原審法院的調查結論不具准確性，不足以推翻投資公司提交的證據。原審法院僅僅在投資公司提供的1095所學校資料的範圍內進行核查，所得結論不足以作為定案依據。而且原審法院的調查數據主要根據調查對象的口頭或書面陳述認定，其證據的客觀性令人質疑。3．原審法院對調查材料歸總整理，確定票款數字的方式對投資公司嚴重不公。海安縣15所學校的觀影時間不符，只能說明長江公司或其下屬單位有超期限發行放映《下》片的違約嫌疑，不能以此減低長江公司的瞞報數額。一審推定無法查明的學校觀影票款以及成人觀影票款為5萬元，沒有事實和法律依據。長江公司負有保證向投資公司提供准確數字的合同責任，故原審法院認定不屬瞞報的9429元應當計入長江公司的瞞報數額。原審法院在判決書中表述的調查結論與其歸卷的核查結果自相矛盾。一審無理由不采用投資公司提交的證據11，對直接支持投資公司訴訟請求的證據和線索不予查證，刻意縮小了長江公司的瞞報範圍。(二)原審法院對于長江公司瞞報責任及其行為性質的認定不全面。根據著作權法，長江公司的瞞報行為已侵犯了投資公司的獲得報酬權，構成侵權。(三)關于滯納金和訴訟費的承擔問題。一審判決書稱投資公司在庭審中撤回要求長江公司支付滯納金、承擔全部訴訟費的訴訟請求，與事實不符。綜上，請求二審：(1)撤銷原判；(2)判令長江公司給付投資公司違約賠償人民幣1500萬元；(3)判令長江公司就違約和侵權行為向投資公司公開賠禮道歉；(4)判令長江公司向投資公司給付電影票房收入分成款237937．20元及滯納金；(5)本案全部訴訟費用由長江公司承擔。 |
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