Definition: "Technology research and development-technology transfer-technical consultation-technical service" contract.
Civil Judgment of Quanzhou Intermediate People's Court, Fujian Province
(2005) No.35, Zi Chu, Quan Min
Plaintiff Zheng Jinpan, male, 1 born on July 23rd, 946, Han nationality, lives in Daping Village, taocheng town, Yongchun County1group.
Authorized Agent: Liu Wenge, lawyer of Fujian Quanzhou Weilie Law Firm.
Defendant: Shan Hao Building Materials Company, Jinjiang City, Fujian Province, whose domicile is Qianpo Village, cizao town, Jinjiang City.
Legal Representative: Su Zhifang, board chairman.
Authorized Agent: Cai Jinguo, lawyer of Fujian Shilong Law Firm.
Zheng Jinpan, the plaintiff, and Shan Hao Building Materials Company (hereinafter referred to as Shan Hao Company), the defendant of Jinjiang City, Fujian Province, made a civil judgment of (200 1) Jinjing Zi ChuNo. 12 12 by Jinjiang People's Court on March 27th, 2002. The defendant Fujian Jinjiang Shan Hao Building Materials Company was sentenced to pay compensation to the plaintiff Zheng Jin within 10 days from the effective date of this judgment.
The defendant, Shan Hao Company, refused to accept the appeal. On February 7, 20021kloc-0, our hospital made a civil judgment of (2002) Jing Quan Zhongzi No.586, revoked the civil judgment of (200 1) Jin Jing Zi Chu No.0/2 12, and rejected Zheng Jinpan's claim.
On September 7, 2004, the People's Procuratorate of Fujian Province filed a civil protest (Min Jian Zi (2004) No.51) on the grounds that the main evidence of the facts identified in the original final judgment was insufficient, and lodged a protest with our court.
Our hospital made the civil ruling (2004)No. 120 on October 20th, 2004, and decided to retry. On February 3, 2004/KLOC-0, the collegial panel heard the case. On April 4th, 20041February/KLOC-0, on the grounds that the technical service contract dispute in this case belongs to an intellectual property right case and the court of first instance has no jurisdiction, it made a civil ruling (2004) No.40, revoked the civil judgments of the first and second instance, and sent it back to Jinjiang People's Court for retrial.
Jinjiang People's Court transferred the case to our court for trial on 1 month 13, 2005. After the court accepted the case, a collegial panel was formed in accordance with the law, and the trial was held in public on April 18, 2005. Plaintiff Zheng Jinpan and his entrusted agent Liu Wenge and defendant Cai Jinguo, entrusted agent of Shan Hao Company, attended the proceedings. This court has now concluded the trial.
Plaintiff Zheng Jinpan complained that,
The plaintiff and the defendant signed a contract on May 23, 2000, stipulating that the plaintiff would install heavy oil emulsification equipment in the drying tower for the defendant. The defendant verbally told the plaintiff to pay 3885.50 yuan for the purchase and installation of two heavy oil flowmeters and components. On September 1 1, 2000, the defendant unilaterally dismantled the emulsifying equipment in violation of the contract and did not continue to perform the contract, resulting in a loss of 33,600 yuan in the down payment of the plaintiff's order for emulsifier, and the supplier offset 2.6 tons of emulsifier, with a value of 36,400 yuan. The defendant shall be liable for breach of contract and compensate the plaintiff for 70,000 yuan. During the performance of the contract, the defendant only provided 363,890 liters (350 tons) of heavy oil for the plaintiff to emulsify, and the plaintiff could get a distribution amount of 43,853 yuan by emulsifying the 350 tons of heavy oil. The defendant promised to provide 400 tons of heavy oil to the plaintiff for emulsification every month. From July 8, 2000 to May 23, 2003, * * should provide heavy oil 13800 tons. The defendant has provided 350 tons, 13450 tons of heavy oil has not been provided. If the defendant performs the contract as agreed, the plaintiff will emulsify heavy oil 13450 tons, and each ton of emulsified heavy oil will get a net profit 100 yuan, and * * * will get a profit 1345000 yuan.
Therefore, the plaintiff requested a judgment: (1) The defendant paid the plaintiff 3,885.5 yuan for the purchase of heavy oil meters and spare parts, 43,853 yuan for the distribution of emulsified 350 tons of heavy oil, 33,600 yuan for the loss of emulsifier deposit, and 2.6 tons of offset printing emulsifier with a value of 36,400 tons; (2) After the performance of the contract, the defendant paid the plaintiff a benefit fee of1345,000 yuan.
Defendant Shan Hao Company argued that the content of the contract (1) was for the enterprise to reduce pollution and save energy. The plaintiff provided technology, corresponding equipment and raw materials, and the defendant provided the place and fuel, and successfully calculated profits through technical cooperation. However, in the experimental stage, it was found that the plaintiff could not reduce pollution and save energy by adding water to the fuel provided by the defendant. During the investigation, the industrial and commercial department ordered the plaintiff to stop the illegal act, and both parties agreed to stop the experiment. (2) The plaintiff's request to order the defendant to pay the plaintiff's benefit fee of1345,000 yuan after the performance of the contract, which belongs to the part of increasing the claim, has exceeded the limitation of action. In the trial of the court of first instance, the court of first instance has informed the plaintiff to handle it separately. However, in the following years, the plaintiff did not sue, and his request for change of litigation did not comply with the law. (3) The plaintiff claimed that he bought the heavy oil meter and spare parts for the defendant at 3885.5 yuan, which was inconsistent with the facts, and the defendant never entrusted the plaintiff to buy it. (4) The plaintiff did not emulsify 13450 tons of heavy oil for the defendant, and there was no basis for asking the defendant to pay 1345000 yuan. (5) In this case, the place of inspection and performance of the contract is the defendant's place. The defendant never found that the plaintiff kept "emulsifier" and other items. The plaintiff thought that the official purchase invoice should be provided for the purchased emulsifier, but the plaintiff did not provide it. Based on this, it can be concluded that the plaintiff's claim for compensation for the loss of emulsifier deposit of 33,600 yuan and the value of offset printing emulsifier of 26 tons of 36,400 tons is untenable.
To sum up, the plaintiff's claim is unfounded and requires dismissal.
It was found through trial that during the trial,
Plaintiff Zheng Jinpan provided:
1, the contract was signed on May 23, 2000, and Party A (defendant Shan Hao Company) decided to emulsify the heavy oil in the drying tower used by Party B (plaintiff Zheng Jinpan) and directly import it into the internal combustion engine for use. Article 1 stipulates that Party A shall install a heavy oil meter (1) between the intermediate tank (daily oil barrel) and the oil supply pump. Article 2 stipulates that Party B shall provide mechanical equipment, tool materials, emulsifiers and operators for operation. Under the production conditions of Party A and the normal supply of heavy oil, water and electricity, Party B shall be able to provide the fuel for internal combustion engine, and the temperature shall meet the normal dryness requirements. If Party B fails to meet this requirement, all mechanical equipment will be removed by Party B itself. Party A can supply oil according to the original system without affecting the combustion work. Article 3 stipulates that non-Party B personnel are prohibited from entering the operation room. Article 4 stipulates the mode of payment and so on.
2. On August 3rd, 2000, KLOC-0, the certificate signed by Li Xunquan, head of the company's drying tower, and workers Lin Xianshen and Dong stated that the drying tower was seriously coked before the emulsified heavy oil was used in our company. Because of the use of emulsified heavy oil of Zheng Jinpan, there is no coking in the furnace and the flame is strong. Emulsified heavy oil can reach the temperature required for combustion in the burner, meet the drying requirements of the drying tower, and has the effect of saving oil. On September 1 1 2000, Huang Zhongshe, head of the company's machine maintenance team, Li Xunquan, head of the drying tower, workers Lin Xianshen and Dong signed the certificate. According to the certificate, according to the instructions of Su, the general manager of our company, the heavy oil emulsification equipment installed by Zheng Jinpan in the drying tower of our company was dismantled. During disassembly, the reading of heavy oil meter (1) is 363890l, and that of heavy oil meter (2) is 4110l.
3. The process parameter record table of drying tower is in quadruplicate, which records the temperature change at the top of the tower before and after emulsification, and is signed by the workers of Shan Hao Company.
4. A copy of the instruction manual of "Bao" brand heavy oil emulsifier company, without product quality standard and production license number.
5. The book Fuel and Combustion edited by Han Zhaocang was published by Metallurgical Industry Press. The fourth section of chapter 14 in the book introduces "emulsified combustion technology of oil mixed with water".
Defendant Shan Hao Company provided:
Two transcripts of the investigation by the staff of Cizao Branch of Jinjiang Industrial and Commercial Bureau entrusted by his lawyer.
The main contents are as follows: In the summer of 2000, when two workers were checking the production quality of ceramic tiles in the factory, they found that someone was engaged in the project of "mixing water with oil" in Shan Hao Company, and asked them to provide the technical data and production license of "mixing water with oil" for energy saving and emission reduction, and told them that "mixing water with oil" was a fraud. Because it was a trial production, the boss of Shan Hao Company also intervened and said to stop immediately, so he didn't go on.
When the two investigation transcripts were cross-examined in the original trial, Zheng Jinpan, the plaintiff, said that two people from the Industrial and Commercial Bureau had gone to check and asked me to take the materials to the Industrial and Commercial Bureau for explanation. I took the materials to explain the technology and function of oil-water mixing, and the people from the industrial and commercial bureau did not intervene again.
In the trial of the original second instance of this case, the staff of Cizao Branch of Jinjiang Industrial and Commercial Bureau testified in court that:
In June and July, 2000, when I went to Shan Hao Company for inspection, I found that Zheng Jinpan was testing heavy oil emulsification equipment in Shan Hao Company. He was stopped at that time, but he said that he was required to provide relevant procedures during the trial production stage. Later, I learned that several factories in cizao town have similar situations, and it is impossible to save fuel. Zheng Jinpan acknowledged the process stated by the staff of the Industrial and Commercial Bureau in the trial testimony, but pointed out that the staff of the Industrial and Commercial Bureau did not say it was fraud at that time.
We believe that,
According to Article 361 of the Contract Law of People's Republic of China (PRC), the trustee of a technical service contract shall complete the service project, solve technical problems, ensure the quality of work and impart knowledge to solve technical problems as agreed.
(Editor's note: 1: The original contract can be signed as an equipment lease/emulsifier commissioned research and development contract. According to the contract, the two sides agreed that the heavy oil emulsification combustion-supporting technology, which is still controversial in academic circles, has the function of combustion-supporting, reducing black smoke and carbon deposition. Does it save fuel? It was confirmed in this experiment. What if the experiment saves fuel? G/m2, Party A shall calculate and pay according to the actual amount of heavy oil. The equipment depreciation fee, emulsifier fee and technical use fee paid to Party B are RMB/ton; If the experiment realizes fuel saving ≤? G/m2, Party B unconditionally dismantled the equipment and resumed the original oil supply, and Party A paid it to Party B according to the actual heavy oil quantity? Yuan/ton emulsifier, in principle, in the six-month experiment, if the experiment fails, Party A will bear the cost of emulsifier and Party B will bear the equipment investment and depreciation. )
The plaintiff Zheng Jinpan and the defendant Shan Hao Company signed the contract on May 23, 2000. Although the nature of the contract was not stipulated in the contract, according to the contents agreed by both parties, the plaintiff Zheng Jinpan provided the defendant Shan Hao Company with the technical service of directly inputting heavy oil into the burner for combustion with his own equipment, materials and technology. Zheng Jinpan, the plaintiff, prohibited non-Party B personnel from entering the operation room in order to keep its technical secrets and prevent Shan Hao Company from knowing its emulsified combustion technology. In other words, the staff of the defendant Shan Hao Company could not enter the operating room of the plaintiff Zheng Jinpan, which completely ruled out the participation of the staff of the defendant Shan Hao Company. Therefore, this contract should be regarded as a technical service contract. Moreover, if the parties to a contract have the capacity for civil conduct, their intentions are true, and their contents do not violate the prohibitive provisions of laws and regulations, the contract shall be deemed valid.
(Editor's Note 2: The R&D contract is entrusted, and the technical achievements are owned by Party B. Of course, it can be stipulated in the contract that non-Party B personnel are prohibited from entering the operation room. )
The purpose of signing the contract is not directly stated in the contract, but according to the contents of the contract and the statements of the parties in the lawsuit, the purpose of the contract is to save energy, reduce pollution and reduce coking. Does the technical service provided by Zheng Jinpan, the plaintiff, for the defendant Shan Hao Company meet the contract requirements?
(Editor's Note 3: The nature of the contract is extremely important, otherwise, there is a risk of being used. For example, this case was interpreted as a technical service contract. What about the initial technical cooperation contract? )
In the lawsuit, the main evidence provided by Zheng Jinpan, the plaintiff, is not only the contract, but also the proof of the workers of Shan Hao Company, the defendant. Can the proof of the defendant's workers in Shan Hao Company be used as evidence that the purpose of the contract has been achieved? Although the form of the certificate made by the workers is true, the content is unrecognizable. The reason is that the plaintiff Zheng Jinpan provided special technical services for the defendant Shan Hao Company. The effect of Zheng Jinpan's services can't be proved by ordinary workers, and it needs to be confirmed by both parties through acceptance or expert appraisal. Otherwise it can't be recognized. However, the workers of the defendant Shan Hao Company are not experts, and they are not authorized by the defendant Shan Hao Company. Although the worker who made the certificate is an employee of the defendant Shan Hao Company, the description in the certificate signed by the worker cannot be used as sufficient evidence that the purpose of the contract has been achieved. Zheng Jinpan, the plaintiff, took the worker's card as evidence, claiming that he had carried out the behavior agreed in the contract and achieved the purpose agreed in the contract, and his reason could not be established.
(Editor's Note 4: In the contract, it is the simplest scheme to determine simple and clear acceptance data. For example, achieve fuel saving per square meter of floor tiles? G/m2. )
The testimony given by the staff of Cizao Branch of Jinjiang Industrial and Commercial Bureau also shows that the "heavy oil emulsification" that Zheng Jinpan was carrying out at the defendant Shan Hao Company at that time was only a trial production. Zheng Jinpan, the plaintiff, claimed that it had been approved by the industrial and commercial department, which was inconsistent with the facts and could not be identified.
The content of oil-in-water emulsification combustion technology introduced in Fuel and Combustion is only an academic research, which does not mean that oil-in-water emulsification is a technology that has been recognized and popularized by the state, let alone that Zheng Jinpan himself has the technical ability. For this technology, Zheng Jinpan, the plaintiff, can't provide specific testing or appraisal conclusions of relevant state departments and institutions, nor can he provide his own successful precedent.
(Editor's Note 5: To developers: It is difficult to develop technology, and it is even more difficult to meet such requirements. What should I do? There is no need to lose freedom for order. The only way is to really communicate with each other and turn the technical service contract into entrustment or * * * with technology research and development. The difference is that the technological achievements of the former belong to the developer, while the technological achievements of the latter belong to both parties. Also, how important it is to establish a successful case with data, analysis and report through 3-5 technology research and development customers! )
Other relevant reports, CDs and other materials provided by both parties, but some of them just have no content, and some of them are unknown, which are not directly related to the case and cannot prove their respective claims, shall not be adopted.
The state encourages and supports scientific and technological research, but whether "water-in-oil emulsion combustion" is scientific, how to deal with it technically and how feasible it is needs further study by experts and scholars. Whether "emulsified combustion of oil mixed with water" has the effect of energy saving and emission reduction is still controversial in scientific and academic circles, and there is no conclusion. However, as a production and operation activity, it should have a clear purpose and effect, and must have the basic conditions or standards for entering the market. In this case, Zheng Jinpan, the plaintiff, provided technical services to Shan Hao Company, the defendant, for emulsified combustion of heavy oil mixed with water. The emulsifying equipment and emulsifier provided by Zheng Jinpan have neither national product quality standards nor industry or enterprise quality standards. As industrial products, heavy oil emulsification equipment and emulsifier should have product quality standards according to the provisions of China's product quality law. Zheng Jinpan, the plaintiff, could not provide the quality standards of products, and the technical services he provided lacked basic acceptance standards. That is to say, Zheng Jinpan, the plaintiff, can neither provide evidence to prove that he has the ability to provide this technical service nor provide sufficient evidence to prove that he has achieved the contract purpose for the defendant Shan Hao Company.
(Editor's Note 5: If the contract belongs to the technical service category, in order to solve the problem of energy saving and consumption reduction, both parties have the willingness to experiment and confirm it in the contract, which will not become an important element of the court's decision. Of course, when products are mass-produced, when there are no corresponding regional, industrial and national standards, we should have our own product standards: the enterprise standard of products is a filing system in our country. In fact, emulsifier products have corresponding national standards. The problem is that the emulsifier in the contract should not be called emulsifier any more. According to the contract, the function of emulsifier should be heavy oil emulsification combustion improver. Therefore, this statement of the court is flawed. )
According to the contract signed between the plaintiff Zheng Jinpan and Bao Min Company, Zheng Jinpan purchased emulsifying equipment and emulsifier from Bao Min Company. According to the contract between the plaintiff and the defendant, the plaintiff Zheng Jinpan should be responsible for providing mechanical equipment, tool materials and emulsifier. Therefore, the plaintiff Zheng Jinpan purchased machines, equipment, emulsifiers, etc. From Bao Min Company, the plaintiff Zheng Jinpan fulfilled his contractual obligations with the defendant Shan Hao Company, and the legal consequences arising therefrom were borne by the plaintiff Zheng Jinpan himself. The plaintiff's claim that the defendant Shan Hao Company should bear the plaintiff Zheng Jinpan's compensation for the losses of Bao Min Company was not supported.
Paragraph 2 of Article 362 of the Contract Law of People's Republic of China (PRC) stipulates that if the trustee of a technical service contract fails to complete the service work as agreed in the contract, he agrees to bear the liability for breach of contract such as exemption from remuneration. According to the contract, the plaintiff Zheng Jinpan should be able to provide fuel for the internal combustion engine, and the temperature should meet the normal requirements of drying. Otherwise, the plaintiff Zheng Jinpan withdrew the machinery and equipment by himself, and the defendant Shan Hao Company supplied oil according to the original system, which could not affect the combustion work. Because Zheng Jinpan, the plaintiff, failed to complete the technical service and achieve the purpose of the contract, Shan Hao Company, the defendant, dismantled the emulsifying machinery and equipment in order to restore the original normal production of the oil supply combustion system, which was also agreed in the contract between the two parties, and there was nothing improper.
(Editor's Note 6: Literally, the court misjudged. In fact, the court's statement is not clear. Imagine that the plaintiff's "service should be able to supply fuel for internal combustion engines, and the temperature should meet the normal requirements of drying" has been fully realized. The problem is that this result can be achieved without this device, which shows that the plaintiff is interested and the defendant is free. Therefore, commercial integrity is the lifeline, and any commercial contract that ignores the other party's core needs, takes chances, or even confuses the other party with fraudulent terms will eventually pay a heavy price. )
Zheng Jinpan, the plaintiff, took Shan Hao Company as the defendant and dismantled emulsifying machinery and equipment, which improperly hindered the achievement of the conditions. It shall be deemed that the conditions have been met, and the reasons cannot be established and shall not be adopted. Zheng Jinpan, the plaintiff, should bear his own losses. Zheng Jinpan, the plaintiff, demanded that the defendant Shan Hao Company pay a benefit fee of 1 345,000 yuan after the performance of the contract. Since the performance of the contract has been terminated and the reason for its non-performance is Zheng Jinpan, the plaintiff's interests are obviously unfounded and the request is not supported.
The plaintiff Zheng Jinpan's claim is not supported because of insufficient evidence and lack of basis, and should be rejected.
Accordingly, in accordance with the provisions of paragraph 2 of Article 356, paragraph 2 of Article 361 and paragraph 2 of Article 362 of People's Republic of China (PRC) Contract Law and paragraph 1 of Article 64 of People's Republic of China (PRC) Civil Procedure Law, the judgment is as follows:
Reject the plaintiff Zheng Jinpan's claim.
The acceptance fee of this case is 17323 yuan, which shall be borne by the plaintiff Zheng Jinpan.
If you refuse to accept this judgment, you can submit an appeal to our court within 15 days from the date of service of the judgment, and submit copies according to the number of the other parties to appeal to the Fujian Higher People's Court.
Presiding judge Lin Xiping
Judge Guo
Acting judge Zheng
July 2005 18
Bookkeeper Chen Tongjian