Reborn I want everything

Chapter 33 Brother Bai told you to collect evidence for half a month without fear

The next day, October 10, morning.

Municipal Intermediate People's Court Intellectual Property Tribunal.

Pan Xiaoting, who had just removed the word "assistant" in front of "assistant judge" a few days ago, is finally about to usher in her first single-handed case in her life.

Although... what she needs to preside over at present is only a pre-trial mediation, which makes her feel a little bit discounted from the sense of accomplishment that she was expecting.

She is the last group of college students who are all-inclusively assigned. She enrolled in the 95th grade and graduated from Huazheng in Shanghai in 99. She was assigned to the Ark City Intermediate Court as a clerk for one year and an assistant judge for two years.

This year is the first year that the country has restructured the "lawyer qualification examination" into a "judicial examination".

She was quite up-to-date, and passed last month in one go. After the results came out, the chief judge took advantage of the opportunity to help her take off the "assistant" hat.

(Note: In fact, by 2010, there were still some judges left over from history in the circle who failed to pass the test, mainly in remote areas. Basically all the coastal areas passed in 06/07, but most of them were transferred. Before 02, judges There is no exam, only lawyers take the exam)
This is a microcosm of the times. From then on, the proportion of women in the domestic court system will become higher and higher.I also have to admit that women do have an advantage in liberal arts back-testing.

At this moment, Pan Xiaoting was reviewing relevant files in the lounge and making the final preparations before the mediation.

A younger colleague walked in quickly on flat heels, put a few pages of supplementary files on the desk, and chatted along the way:

"Sister Pan, isn't this afternoon's case easy? It seems to me that a college student is suing a kitchen appliance company and its R&D personnel for patent infringement. Why is the subject matter involved in the case so small, only a few thousand dollars, and the amount of compensation is even more Only a few hundred."

Pan Xiaoting sighed: "It's really boring, just review the past and learn the new. But Xiao Qin, don't relax, take good records, and you will use them in the final mediation document."

"Okay, you can rest assured."

The girl called Xiao Qin is Qin Nuan, she is Xiao Pan Xiaoting's second-year school girl, and she just arrived last year.Just because of the difference of two terms, the package allocation is gone, and the future may be quite different.Qin Nuan was a clerk when she joined the job, but she couldn't even be transferred to an assistant judge for the law test.

Seeing that Qin Nuan's attitude of agreeing was very good, Pan Xiaoting also explained a few more words to her by the way:

"The reason why the amount of money in this case is not interesting is that in a patent infringement case, you have to point out how much interests have been infringed and how large the scale is. The defendant needs to 'actually implement specific infringements for the purpose of production and operation'.

However, the materials provided by the plaintiff mainly only show that the defendant may have used the information obtained from the previous cooperative relationship to try to develop and apply for a patent that overlaps with the plaintiff, and then it was rejected, but nothing more.

What about production?What about sales?The other party did not rush into the actual scale of production and sales before obtaining the authorization. How can the infringement damage be determined?I don't think the plaintiff gets much to gain. "

Pan Xiaoting made a very professional judgment based on her three years of experience in intellectual property trial practice.

No way, Tong Shuangqing, who is Gu Zhe's opponent, just wanted to plagiarize a patent at the beginning, and didn't even think about putting this thing into production, and the company didn't decide to commercialize this dispensable technology.

In this regard, the biggest difference between civil and criminal litigation is that criminal litigation emphasizes the "unity of subjectivity and objectivity", that is, the criminal law pays more attention to subjective motives and viciousness. As long as the behavior is carried out, attempted cases may also be sentenced.

However, there is no concept of "attempted" in civil litigation, especially in commercial cases. The other party wants to infringe your rights. No matter how well thought out, they have done all the preparations, but they have not kicked out the door and have not infringed any damage. What is there to sue?

After listening to the senior sister's analysis, Qin Nuan finally understood the key point, but then came up with a question: "Since the defendant company has no large-scale production and sales at all, how did the plaintiff's indictment be successfully filed?"

Pan Xiaoting shook her head and sighed: "How should I put it, this plaintiff is really good at picking pennies and pennies: Although the defendant company in this case did not conduct 'sales', it could not even prove that there was a 'sales' plan, but it was indeed a very small amount of 'production' 'If the samples are collected, even if they are piled up in the warehouse, the scale of infringement can be determined according to the inventory involved.

Probably the internal R&D management system of the defendant company was self-defeating. It was probably R&D proofing, but somehow it was obtained by the plaintiff named Gu Zhe, and he used it as the infringement target to determine the amount of the lawsuit——Of course, it is also possible Insufficient evidence collection will be found out after the court session.

So the value of the case is only a little bit, I really don't know what to think.It is estimated that young people's legal awareness has become stronger now, so don't steam steamed buns to fight for breath.

It is estimated that he also sued himself, and he could not afford a lawyer.Otherwise, if there is a veteran lawyer giving advice, it is estimated that he will release the water to raise fish first, and then close the net after the damage is more obvious and the amount involved is large.

But I think it is almost impossible for the plaintiff to drag the defendant company into the water. Even if he is justified, he will leave with a few hundred dollars at most.If the defendant argued that the behavior of the R&D personnel involved in the case was not an official behavior, the plaintiff should have no evidence to support it.

Also, you should also know that the FA Department of the Joint Division of the Supreme People's Court just issued "Several Regulations on People's Mediation Work" on the 26th of last month. Now it is just a hot discussion period, and all levels attach great importance to the mediation rate.
If we can mediate before the court, the president of the judge will also look good.After all, this regulation has only been implemented for more than a dozen working days. Our case may be the first intellectual property infringement case adjusted after the issuance of the regulation. "

Qin Nuan listened very carefully, these analysis experience will be very useful for her to take the law test next year.

The case in a while must be observed carefully throughout the whole process to see if the college student can create any miracles.

……

The time was up soon, Qin Nuan came to the mediation room first, confirmed the identities of the plaintiff and the defendant, and finally invited Pan Xiaoting to attend.

(Note: The theoretical process in the Civil Procedure Law has always been like this. The clerk enters the court first, and after confirming the situation, the clerk invites the presiding judge to sit in. There is no regulation for mediation, but the courtroom is generally used.

In recent years, since video trials have been changed, new lawyers or those who watch court trials online should not be able to see the clerk. They are replaced by cameras, and now the presiding judge sits directly in the middle. )
Neither the plaintiff nor the defendant hired a professional lawyer to represent him, so the plaintiff Gu Zhe came here alone.

Theoretically, the defendant should attend Tong Shuangqing because he is one of the co-defendants, and then the company has to send a representative.

But in fact, the company did not allow him to attend. It only asked Chen Qingfeng, the head of the R&D department, to attend as a company representative, and then sent an employee from the legal department named Feng Yun.

Feng Yun will represent Tong Shuangqing's opinion at that time. Of course, the power of attorney and power of attorney must be complete.

The company also considered that the amount involved in this case was too low. If it hired a lawyer, the lawyer's fee would be at least dozens of times higher than the amount requested for compensation, which was not worth it.

The company's attitude is only one: if you want to lose money, let Tong Shuangqing pay directly, and the matter is settled, but it must be in Tong Shuangqing's name, and it is fine not to come and bite the company, and it is not recognized as an occupational behavior.

Even afterward, the company can pay Tong Shuangqing money in private, don't go out of the way, just want to save face.

With the mentality of both parties, the progress of the mediation work was as expected by Pan Xiaoting:

For other side issues, both parties quickly reached a consensus and passed them directly. Finally, they focused on "whether Tong Shuangqing's behavior was an official behavior, whether it was organized and premeditated by the defendant company, and whether the defendant company should bear joint and several liabilities" .

Even the clerk Qin Nuan had an illusion when he remembered it: "This plaintiff is here to touch porcelain, right? He doesn't seem to care about any real interests, he only cares about pouring dirty water on the defendant's company, could it be that Was it sent by a competitor?
But this case is unlikely to have a great social impact, and it will not attract media reports, and the media is not allowed to report on unfinished cases. "

After some mediation, it seems that the mediation is not working.In the final stage, Gu Zhe said:

"Dear presiding judge, I have evidence to prove that the other party is an organized and premeditated professional behavior. Since the defendant refuses to admit this, I hope to show the relevant evidence to the other party."

Pan Xiaoting rubbed her temples, and frowned: "The plaintiff, please pay attention to the procedure of the lawsuit: cross-examination is a procedure during the trial, and if it is confirmed that there will be a trial, an evidence exchange link will be arranged before the trial.

The goal of today's mediation is to confirm whether it is possible for you to reach an agreement before these links. "

Gu Zhe smiled slightly: "Thank you for the presiding judge's reminder. Then, I hope to end the mediation at this stage and show my evidence to the other party first."

Pan Xiaoting: "Don't you need to wait for the notice so that both parties have time to collect evidence? I hope the plaintiff pays attention: the content of today's subpoena notice is only pre-court mediation. Maybe you have already started to collect evidence, but the other party may not.

Therefore, no matter whether you ask for evidence today or not, this court will reserve sufficient time for the other party to collect evidence, as well as to find counter-evidence and organize materials after exchanging evidence.

Therefore, I have to remind you that if you insist on presenting evidence today, it will only put you in an unfavorable environment of 'exposing your own evidence in advance'. Do you still insist on doing so, the plaintiff? "

Pan Xiaoting's words may not be understood by people who do not understand the Civil Procedure Law. In civil litigation, if the initial evidence exchange fails before the initial evidence exchange, a second subpoena must be issued to exchange evidence. It will be some time before the first official court hearing.

Therefore, what evidence a person will present in court, under normal circumstances, you will not be asked to engage in "evidence raids", because the other party already knows what evidence you will present before the trial.

That kind of sudden attack will only appear in Zhou Xingchi's funny movies or Hong Kong Xiaobai legal dramas.

For today's case, Pan Xiaoting's original plan was: if the initial investigation fails, they will be notified to exchange evidence after 15 days. After the exchange, both parties will be given 15 days to prepare how to refute the evidence exchanged by the other party, and then the court will start.

If Gu Zhe showed the evidence to the other party now, it would only lead to one result: the other party would know what evidence Gu Zhe would submit 30 days in advance, and Gu Zhe would still only know what evidence the other party would submit 15 days in advance.

In other words, Gu Zhe would give the other party an extra 15 days of time to prepare and study him.This is equivalent to a game. You feel that you have a great advantage, let the opponent study you for half a month, and you can still beat it when it comes to playing.

As the presiding judge, Pan Xiaoting must remind him of the legal consequences of doing so and the possible disadvantages.If he still insists, that's up to him.

Rights can be waived, but obligations must be fulfilled.

Gu Zhe said without hesitation: "I have fully understood my litigation rights and obligations in the process of evidence exchange and cross-examination. I still insist on presenting my important evidence immediately after the preliminary investigation."

Goby gives you 15 days to prepare!
(End of this chapter)