"Tencent-Laoganma" episode

Introduction of "Tencent-Laoganma" Event

On July 10, 2020, Tencent official Weibo issued a joint statement, saying that it had shaken hands with Laoganma and had applied to the court to withdraw the application for property preservation and the lawsuit in this case. The contest between Internet giants and national brands, which triggered a heated discussion, came to an end.

(Photo 1 Source Tencent official Weibo)

The twists and turns of the plot and the confusing facts of the case, although the storm has ended, but the legal issues involved in the process are typical, I think it is really necessary to discuss. This paper intends to extract and analyze the apparent agency problems involved. Before that, let's review the whole story.

According to the relevant provisions of the agency by estoppel system in China, if the actions of the three suspects meet the constitutive requirements of agency by estoppel, Laoganma still needs to fulfill the agreed obligations in the cooperation agreement and pay the corresponding advertising expenses. In other words, even if Tencent is indeed cheated, it will not necessarily suffer economic losses in the end.

Appearance agent

(1) legal provisions

As can be seen from the above table, the provisions on agency by estoppel in the civil code have not been substantially revised compared with the contract law.

In addition, agency by estoppel is similar to agency by estoppel in a narrow sense, that is, the actor has no agency right, exceeds the agency right or his agency right has been terminated. The difference between the two is mainly reflected in the following two points.

(B) the constitutive requirements of agency by estoppel

Article 13 of the Supreme People's Court's Guiding Opinions on Several Issues Concerning the Trial of Civil and Commercial Contract Disputes under the Current Situation:

The system of agency by estoppel stipulated in Article 49 of the Contract Law not only requires the agent's unauthorized agency behavior to objectively form the appearance of agency, but also requires the counterpart to subjectively believe that the actor has obtained the agency in good faith. If the counterpart of the contract claims to constitute an agency by estoppel, it should bear the burden of proof, which means that there are objective formal elements such as contract, official seal and seal in the agency behavior, and that it is in good faith and that the actor has the agency right without losing the basis.

According to the above provisions, the constitutive requirements of agency by estoppel are as follows:

1. The actor has no agency right, exceeds the agency right or the agency right is terminated;

2. The actor's unauthorized agency behavior objectively forms the appearance of agency;

3. The counterpart subjectively believes that the actor has the right of agency in good faith.

Analysis of event dispute points

Combined with the existing information, the author believes that the controversial points of this "Tencent-Laoganma" incident are mainly reflected in the following two aspects.

(1) Does the actor forge a seal to sign an agreement constitute an agency by estoppel?

According to Article 4 1 of the Minutes of Civil and Commercial Trials of National Courts (hereinafter referred to as Minutes of Nine Citizens), in judicial practice, a contract signed by the actor in the name of the principal may not be invalid if it is stamped with a forged seal. On the contrary, if the actor's behavior conforms to the constitutive requirements of agency by estoppel, his agency behavior should be valid regardless of the authenticity of his seal. (For the legal effect of the act of stamping false seals, please refer to Dai Lili's "New Perspective of Trial". Is the contract valid? "article)

The following is a typical case to further illustrate.

CaseNo. 1 In case No.3402 (20 15), Liang had a relationship with Company A from 2009 to 20 12, during which Liang had undertaken Project A in the name of Company A, and Company A issued a power of attorney to Liang.

In addition, Liang also built Project B in the name of Company A, and Company A ratified and actually exercised the management right of the project afterwards. Therefore, there is still a relationship between Liang Hejia Company and Project B. ..

2010 165438+1October16. Liang signed a lease contract with Bai in the name of Company A for the construction of Project B. Company A claims that the seals of Company A and Project B in the lease contract are all privately engraved by Liang, which does not mean that the contract should be invalid.

However, the Supreme Court held that due to the subordinate relationship between Liang and Company A, Bai had reason to believe that the seal was true and Liang was authorized by Company A, so Liang's behavior constituted an agency by estoppel, and the consequences of his behavior should be borne by Company A. Company A claimed that the lease contract was invalid without legal basis and should not bear the corresponding legal consequences.

As far as the "Tencent-Laoganma" incident is concerned, according to the circular issued by the Shuanglong Branch of Guiyang Public Security Bureau, it can only be concluded that the perpetrators forged the seal of Laoganma and pretended to be the marketing manager of the company. As for whether there is any other relationship between the perpetrators and Laoganma, it is not known for the time being.

In addition, Tencent's legal department is known as "Pizza Hut in Nanshan" on the rivers and lakes. If you just fall into the trap designed by the actor with a forged seal, it will be hard to convince people.

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

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

When the people's court judges whether the counterpart of the contract is in good faith subjectively and without fault, it should comprehensively judge whether the counterpart of the contract has fulfilled the obligation of reasonable care in combination with various factors in the process of contract conclusion and performance, and also consider the conclusion time of the contract, the name in which it was signed, the authenticity of the relevant seal and seal, the delivery method and place of the subject matter, the materials purchased, the leased equipment, the purpose of the loan, whether the construction unit knows the behavior of the project manager and whether it participates in the contract performance.

The following is a typical case to further illustrate.

Case 2 In the case of (20 13) Mintizi No.95, the key to the trial was whether Tan represented Bank A, that is, whether Tan constituted an agency by estoppel when negotiating with Li.

The Supreme Court pointed out that the goodwill and no-fault of the counterpart should contain two meanings: first, the counterpart thinks that the agent's agency behavior belongs to the agency authority; Second, the counterpart has no fault, that is, the counterpart has paid full attention to it, but it still cannot deny the agent's power of agency.

In this case, the counterpart Li failed to fulfill his duty of reasonable care in the following aspects during the negotiation with Tan:

First, I believe the identity of President Tan without verification. When Tan received Li, he was not in the office of Bank A, but in the branch office of the bank. As the "president", Tan personally took Li to the counter to handle the "deposit" business. Due to negligence, Li did not doubt Tan's unconventional practice as the "Dean" and failed to fulfill his duty of reasonable care;

Second, Li did not doubt many irregular operations in the deposit process. For example, Li, as a depositor, should know that when handling business at the bank counter, he needs to show the business items to the teller, but he did not make a deposit statement when trading at the counter;

Third, Li subjectively has the intention of pursuing high interest rates in violation of regulations. Li didn't doubt the high interest promised by the actor, nor did he check with Bank A, so the counterpart Li subjectively didn't have goodwill, which didn't meet the requirements of the constitutive requirements of bona fide no-fault agency, and Tan's behavior didn't constitute agency by estoppel.

Back to the "Tencent-Laoganma" incident, if Tencent believed the identity of the actor's "marketing manager" without verification when signing the cooperation agreement with the actor, or did not doubt its irregular operation and did not verify it with Laoganma during the signing of the agreement, it would be difficult to conclude that it had fulfilled its duty of reasonable care, and it would be difficult for the actor's unauthorized agency behavior to constitute an apparent agency.

In addition, according to the latest joint notification of both parties, Tencent apologized and reported the case to the police with contract fraud, proving that the act of privately engraving the official seal and signing the cooperation agreement did not constitute agency by estoppel, and its legal consequences naturally had nothing to do with Laoganma.

summary

In the face of such hot events, the best way to participate is to eat melons rationally and learn from them. If you encounter similar situations in practice, the author suggests:

1. When signing various agreements, the signatory shall be required to produce the documents signed by the legal representative or authorized representative, and it is not enough to simply affix the official seal or contract seal;

2. Irregular operations in the process of signing the contract (such as the signing place and the signing process not conforming to the trading habits, etc.). ), should contact the client for verification;

3. The authorization period and agency authority should be clearly stipulated in the power of attorney and other similar documents. When the relevant personnel leave their jobs, the authorization should be terminated in time.

Legal link

Section 4 1 Minutes of Nine Persons:

In judicial practice, some companies intentionally engrave two or more sets of official seals, and some legal representatives or agents even engrave official seals privately, maliciously stamping unregistered official seals or fake official seals when concluding contracts. After a dispute, it is not uncommon for a legal person to deny the validity of a contract on the grounds of stamping a false official seal. When trying a case, the people's court should mainly examine whether the signatory has the power of attorney or the power of attorney when stamping, so as to determine the validity of the contract according to the relevant provisions on the power of attorney or the power of attorney.

The act of the legal representative or his authorized person affixing the official seal of a legal person on the contract indicates that he signed the contract in the name of a legal person, and the legal person shall bear the corresponding legal consequences, unless there are special provisions on his functions and powers in Article 16 of the Company Law. If the legal person denies the validity of the contract on the grounds that the legal representative has no representative afterwards, the seal is false, and the seal is inconsistent with the official seal for the record, the people's court will not support it.

An agent must be authorized by law to sign a contract in the name of the principal. After the agent is legally authorized, the contract signed in the name of the principal shall be borne by the principal. If the principal denies the validity of the contract on the grounds that the agent has no agency right, the seal is false, and the seal is inconsistent with the official seal for the record, the people's court will not support it.

(Author: Liu Wanying, graduate student of Shanghai University of International Business and Economics Law School)