According to Article 88 of the Civil Procedure Law (that is, Article 9 1 of the current Civil Procedure Law), if it is difficult to serve the litigation documents directly, it can be served by mail. Article 2 of the Provisions on the Service of Documents by Court Express Mail stipulates that the service of civil litigation documents by court express mail has the same legal effect as that by the people's court. The address where the court mailed the responding materials, including court summons, to the addressee company is its industrial and commercial registration place, which has the effect of legal publicity, and the above responding materials are also signed by the employees of the company, so the service of the court is legal and effective. //

The Supreme People's Court, People's Republic of China (PRC)

civil judgment

(20 19) Supreme Law Zhimin No.500

Appellant (defendant in the original trial): Dongguan Crayfish Electronic Technology Co., Ltd. Address: A71A71Xinda Commercial Building, No.240 Huanshi West Road, Pu xinhu community, Tangxia Town, Dongguan City, Guangdong Province.

Legal Representative: Lu, chief financial officer of the company.

Authorized Agent: Zheng Shaoqian, lawyer of Hunan Bafang Law Firm.

Appellee (plaintiff in the original trial): Qufu Qin Yi Education Technology Co., Ltd.

Legal Representative: Bing Xu, general manager of this company.

Authorized Agent: Kong Fansheng, lawyer of Shandong Qushengdi Law Firm.

The appellant Dongguan Crayfish Electronic Technology Co., Ltd. (hereinafter referred to as Crayfish Company) refused to accept the civil judgment No.75 of Guangzhou Intellectual Property Court (20 19 (early 73rd Guangdong) because of a computer software development contract dispute with the appellee Qufu Yi Shu Education Technology Co., Ltd. (hereinafter referred to as the Company). After the case was put on file on September 23rd, 20th19th, a collegial panel was formed according to law, and the case was heard in public on September 23rd, 20th113rd. Zheng Shaoqian, the litigation agent of the Appellant Crayfish Company, Bing Xu, the legal representative of the Appellee, and Kong Fansheng, the litigation agent, attended the proceedings. The case has now been closed.

Crayfish company's appeal request: the original judgment is revoked, all the claims of the company are rejected, and the company will bear the litigation costs of the first and second trials. The facts and reasons are as follows: (1) The reason why Crayfish Company didn't attend the trial of the original trial was that it didn't receive the court summons and responding materials mailed by the court of the original trial. According to the judgment of the original trial, the materials that the crayfish company signed for responding to the lawsuit in the court on February 6, 2065438 were untrue, the legal representative of the crayfish company did not receive the phone call from the courier, and the employees and other employees of the company did not receive the above materials or were notified by the court of the original trial to participate in the lawsuit. (2) There is no breach of contract by crayfish company. The first part of Annex I Function Book signed by both parties stipulates: "Note: The above are the main functions to be realized, but they may not be completely consistent with the above description. During the development process, both parties can specifically negotiate whether to change it, as long as Party A agrees, otherwise the above description shall prevail. " Before the second prototype development, crayfish company and Shenyi company had fully negotiated and reached an agreement on product functions and development difficulties. The products delivered by crayfish company were approved by both parties through consultation, and there was no breach of contract.

The company argued that: (1) Crayfish Company argued that it did not receive the summons for the original trial, which was inconsistent with the facts. On the eve of the trial of the original trial, the court of the original trial has informed the crayfish company by telephone that since the crayfish company can receive the judgment of the original trial at its domicile, it should also receive the summons of the original trial. (2) The crayfish company indicated that it had communicated the main functions and secondary functions of the secondary prototype and reached an agreement. This statement is wrong, and the two sides have not reached any agreement at all. Request to dismiss the appeal and uphold the original judgment.

The company brought a lawsuit to the court of first instance: 1. Dissolve the strategic cooperation agreement signed between the company and crayfish company (hereinafter referred to as the agreement); 2. The crayfish company returns165,000 yuan and pays overdue interest (from February 6, 20 18 to the actual payment date, calculated according to the loan interest rate of the People's Bank of China for the same period); 3. Crayfish Company shall bear the litigation costs of this case. Facts and reasons: On February 3, 2008, Yuji Company signed an agreement with crayfish company, stipulating that crayfish company would develop and produce educational robots for Yuji Company, with a research and development cycle of 60 working days and a total cost of 230,000 yuan. The company paid 50% of the money 1 15000 yuan first, and then the crayfish company said that the funds were tight, and the company paid another 50000 yuan. Crayfish Company only provided the first sample in early May, 20 18, and it failed to meet the requirements after testing. After the company proposed amendments, the crayfish company provided the second sample at the end of June 20 1 18, which still failed to meet the contract requirements. The two sides began to communicate repeatedly, but the crayfish company avoided it, saying it would take time. The company believes that the crayfish company failed to provide qualified products within the agreed time limit, which made the company unable to achieve the purpose of the contract. According to the agreement, the crayfish company should refund the money paid by the company.

The court of first instance found the fact that on February 3, 2008, Yi Tong Company (as Party A) and Crayfish Company (as Party B) signed an agreement to jointly develop the "learning robot" market. Party A put forward the idea of "an educational robot to help students improve their reading interest and test the reading effect" (hereinafter referred to as the product), and entrusted Party B to develop and contract. Party B's work includes ID/MD design, motherboard, UI design and software integration, mold development, product production, as well as product packaging boxes and instructions; The performance, function and parameters of the product shall be subject to the "Main and Auxiliary Function Book" agreed by both parties, and the product quality shall be subject to the "Product Quality Book" agreed by both parties; R&D expenses (including appearance, structure and interface design, motherboard, software integration, etc. ) is 6,543,800 yuan, the mold cost is 6,543,800 yuan, and the APP development cost required by Party A is 6,543,800 yuan, totaling 230,000 yuan. Party A pays 50% to Party B in advance, that is, 654.38+065.438+0.5 million yuan. The product development cycle is 60 working days; Party B shall complete product development and realize mass production according to the contents, functions and quality specified in the annex. If the content, function and quality specified in the annex cannot be achieved, both parties shall solve the problem through consultation in a cooperative manner and try to reach an agreement. If no agreement can be reached in the end, Party B shall refund the money paid by Party A. The agreement contains two annexes, namely, the main and auxiliary function books of the product (hereinafter referred to as the function book) and the product quality book. Among them, the function book states that the product should have four main functions, including: 1. Game-style "reading detection" function; 2. Question function; 3. Dictionary function, including that when students encounter unfamiliar words and phrases in the reading process, they can tell the robot through voice, and the robot can tell the students the pronunciation and meaning of these words and phrases through voice and appear on the screen; 4. Pet growth function. The product should have 43 secondary functions (including interface expression, voice, conversation record, picture book identification, WeChat call, on-demand push, weather query, voice memory, etc.). ).

On 20th 1 8, 12,1,12, and 7th, the crayfish company issued receipts to the company, and the receipts showed that the company had received 20,000 yuan,145,000 yuan and165,000 yuan.

In the trial of the original trial, the company submitted two products, claiming to be samples delivered by crayfish company on May 2065438 and June 2065438 +0 18 respectively. The company's technicians demonstrated the so-called second sample in court. Compared with the main functions of the agreement, the demonstration results show that the product does not display the function of "reading detection" and does not have the function of asking questions. The sample has dictionary content, but it cannot communicate through voice. By comparison, it is agreed that the secondary function, the product does not display the seventh and eighth functions, that is, the interface does not display the image of a hehehe rabbit, and there is no "hehehe" laughter. The product has no dialogue recording function of 13, picture book identification function of 15, WeChat calling function of 22, on-demand push function of 26, voice weather query function of 28 and 38 functions. It was also found that the court of first instance served the crayfish company with the complaint and other responding materials by court express mail, and the crayfish company signed the above documents on February 19, 2009.

The court of first instance held that this case was a computer software development contract. If the crayfish company fails to appear in court after being summoned by the court according to law, it shall be deemed as giving up the right to defend and cross-examine the facts stated and the evidence provided by the company. After review by the court of first instance, the agreement signed between the company and the crayfish company involved is the true intention of both parties and is legal and valid. The problems that need to be identified in this case are: whether the agreement involved should be dissolved due to the breach of contract by crayfish company; How to determine the civil liability of crayfish company? (1) Whether the agreement involved should be dissolved due to the breach of contract by crayfish company. The company claims that the crayfish company cannot achieve the purpose of the contract because of its breach of contract, and requests to terminate the agreement. According to the agreement signed between Shenyi Company and Crayfish Company, Crayfish Company should develop products that meet the functions of the function book in the annex of the agreement within 60 working days. The court of first instance showed that the products provided by crayfish company lacked three of the four main functions and at least eight of the 43 secondary functions. In other words, the products delivered by crayfish company do not conform to the contract. There is a breach of contract by the crayfish company, which leads to the failure of the contract purpose of the company to develop and mass-produce products. The company requested to terminate the contract, and the court of first instance supported it. According to Article 96 of the Contract Law of People's Republic of China (PRC), the agreement involved is terminated the day after the complaint is delivered to the crayfish company. (2) How to determine the civil liability of crayfish company. According to Article 97 of the Contract Law of People's Republic of China (PRC), if the contract has not been performed after dissolution, the performance shall be terminated; If it has been performed, according to the performance and the nature of the contract, the parties may demand restitution and take other remedial measures, and have the right to demand compensation for losses. According to the agreement, if the products provided by the crayfish company fail to meet the functional requirements specified in the product's main functions and secondary functions, and no agreement can be reached through negotiation, the crayfish company shall refund the money paid by the company. Under the current contract, the company asked the crayfish company to return the paid 165000 yuan, which was in line with the contract and was supported by the court of first instance. In addition, after the termination of the contract, the interest fruits of the crayfish company during the occupation of relevant funds are the company's losses, and the crayfish company should pay them together. There is no basis for the company to calculate the relevant interest loss from February 6, 20 18. The court of first instance found that the relevant interest loss should be calculated with reference to the benchmark interest rate of the People's Bank of China for the same period from the day after the termination of the contract, that is, February 8, 2065438.

To sum up, the court of first instance ruled: 1. The agreement signed between our company and crayfish company on February 3, 20 18 was dissolved on February 9/kloc-0; 2. The crayfish company shall return165,000 yuan and pay relevant interest to the company within 10 days from the date when the judgment of the original trial takes legal effect (with165,000 yuan as the principal, calculated with reference to the benchmark loan interest rate of China People's Bank from February 20, 2009 to the actual repayment date); 3. Reject other claims of the company. The case acceptance fee is 3,600 yuan, which shall be borne by the crayfish company.

During the second trial of our court, neither party submitted evidence, and the facts ascertained in the original trial were basically true, which our court confirmed.

We believe that the focus of the dispute in this case is: whether the court summons served by the court of first instance on crayfish company is legal; Whether the crayfish company constitutes a breach of contract.

According to Article 88 of the Civil Procedure Law of People's Republic of China (PRC), if it is difficult to serve litigation documents directly, they can be served by mail. Article 2 of "Several Provisions of the Supreme People's Court on Court Express Service of Civil Litigation Documents" stipulates that the court express service of civil litigation documents has the same legal effect as that of the people's court. The address where the court of first instance mailed the responding materials, including the court summons, to the crayfish company was A710-A71Xinda Commercial Building, No.240 Huanshi West Road, Pu xinhu community, Tangxia Town, Dongguan City. As the industrial and commercial registration place of crayfish company, this address has the effect of legal publicity, and the above-mentioned responding materials also have the personal signature of "Wang Haiting". In the trial of the second instance, the crayfish company entrusted an agent ad litem to confirm that Wang Haiting was a salesperson of the crayfish company. The original judgment was also mailed to the above address and successfully delivered, so the court summons served on crayfish company is legal and effective.

The court demonstration in the original trial showed that the prototype provided by crayfish company for the second time was compared with the function book in Annex I of the agreement, and the prototype lacked three of the four main functions and at least eight of the 43 secondary functions. Crayfish Company had no objection to the above facts in the trial of the second instance, but thought that it had fully negotiated and reached an agreement with the company on product functions and development difficulties before the second prototype development, and the second delivery of the company's prototype was agreed by both parties through consultation, so there was no breach of contract. However, in this case, the crayfish company did not provide evidence to prove its claim, so the court did not support this defense of the crayfish company.

To sum up, we think that the appeal grounds and requests of crayfish company cannot be established and are not supported. The judgment of the original trial found that the facts were clear and the applicable law was correct and should be upheld. According to the provisions of Item 1, Paragraph 1, Article 170 of the Civil Procedure Law of People's Republic of China (PRC), the judgment is as follows:

Reject the appeal and uphold the original judgment.

The acceptance fee for the second instance case is 3,600 yuan, which shall be borne by Dongguan crayfish Electronic Technology Co., Ltd. ..

This is the final judgment.

Chief referee cen Hongyu

Examiner Zhou Ping

Judge Zhang Hongwei.

20 19 years 1 1 month 25th

The judge assisted Liu.

Bookkeeper Xingyuan

Source: Civil trial