Faa. com Selected Questions and Answers (the second batch)

　　Question 1: How to determine the validity of the contract in the case of bitcoin "mining"?

　　Question and answer:China’s regulatory policy on virtual currency is relatively clear. On September 15th, 2021, the People’s Bank of China and other departments issued the Notice on Further Preventing and Handling the Speculation Risks of Virtual Currency Trading (Yinfa [2021] No.237), which emphasized that virtual currencies such as Bitcoin and Ethereum do not have the same legal status as legal tender and cannot be circulated in the market as currency. At the same time, the notice clearly pointed out that virtual currency-related businesses such as virtual currency exchange and providing matching services for virtual currency transactions are all illegal financial activities, which are strictly prohibited and resolutely banned according to law; If any legal person, unincorporated organization or natural person invests in virtual currency and related derivatives, which violates public order and good customs, the relevant civil legal acts shall be invalid, and the losses arising therefrom shall be borne by itself; Suspected of undermining financial order and endangering financial security, the relevant departments shall investigate and deal with it according to law.

　　The "mining" activity of virtual currency refers to the process of calculating and producing virtual currency through a special "mining machine". The energy consumption and carbon emissions are large, and the contribution to the national economy is low, and the driving effect on industrial development and scientific and technological progress is limited. In addition, the risks derived from the production and trading of virtual currency are more and more prominent, and its blind and disorderly development has a negative impact on promoting high-quality economic and social development and energy conservation and emission reduction. On September 3, 2021, the National Development and Reform Commission and other departments issued the Notice on Regulating the Mining Activities of Virtual Currency (Development and Reform Operation [2021] No.1283). According to the general idea of "strict monitoring, strict prevention of risks, no increment and proper storage", the incremental and storage items of virtual currency were distinguished, and the principle of classified treatment was adhered to. It is strictly forbidden to invest in incremental projects, speed up the orderly withdrawal of existing projects, and scientifically determine the withdrawal timetable and implementation path based on the actual situation in various places on the premise of ensuring a smooth transition.

　　People’s courts should pay attention to the changes of important national regulatory policies and accurately determine the validity of contracts when trying cases involving virtual currency "mining" such as bitcoin. Disputes related to virtual currency "mining" activities such as bitcoin should be treated differently with September 3, 2021 as the time node: contracts concluded after this time point should be deemed invalid; The relevant contracts before this time point should not simply deny their validity, but should be identified according to the provisions of the Civil Code on the validity of contracts and the facts of the case. If the people’s court confirms that the contract is invalid after trial, the people’s court will not support the request of the parties to deliver the property or pay the consideration in accordance with the contract; If the parties request the other party to return the property acquired as a result of the contract, the people’s court may support it; If it cannot be returned, the people’s court will not support the claim that the virtual currency such as Bitcoin should be converted into legal tender value for compensation, unless the parties reach an agreement on the compensation amount of virtual currency such as Bitcoin. If the contract is valid but not fulfilled, and the parties request the other party to bear the liability for breach of contract, the people’s court needs to fully consider the influence of changes in national policies on the performance of the contract, and reasonably determine the scope and mode of liability for breach of contract.

　　Comment Expert: Zhou Youjun, Party Secretary and Professor of Beihang University Law School.

　　Comments: The validity of the contract involving bitcoin "mining" case is controversial in judicial practice. Bitcoin’s "mining" behavior consumes a lot of electricity and energy, which is not in line with the concept of green development, is not conducive to energy conservation and emission reduction and the realization of peak carbon dioxide emissions’s carbon neutrality goal, and also violates the green principle stipulated in Article 9 of the Civil Code. Therefore, on September 3, 2021, the National Development and Reform Commission and other departments issued the Notice on Renovating the Mining Activities of Virtual Currency, which included the mining activities of Bitcoin in the category of eliminated industries. Answers combined with the provisions of Article 153, paragraph 2, of the Civil Code on public order and good customs, will violate the important regulatory policies of the state, which will be deemed as a violation of public order and good customs, and thus the contract will be deemed invalid. When the people’s court hears the case of bitcoin "mining", it can guarantee and guide the green development through judicial activities by incorporating the above-mentioned important national regulatory policies into the important considerations for determining the validity of the contract. The Q&A also clarified the legal consequences of invalid contracts in bitcoin "mining" cases, and also considered the requirements of important national regulatory policies issued by the National Development and Reform Commission and other departments. The legal basis of answering questions is sufficient and operable, which has great guiding value for the judgment of similar cases.

　　Question 2: If the guarantee contract is invalid, does the general guarantor also enjoy the right of defense?

　　Question and answer:According to the provisions of Article 687 of the Civil Code, the general guarantor’s right of defense in the first action means that the guarantor can refuse to undertake the guarantee responsibility before the main debt has not been tried or arbitrated and the debtor’s property is enforced according to law. When the guarantee contract is invalid because of the invalidity of the principal creditor’s rights and debts contract, or because of its own reasons, whether the general guarantor still enjoys the right of defense in advance has a great influence on the interests of the guarantor and the creditor, and there are differences in practice. Through research, it is considered that the general guarantor is still protected by the right of defense. The specific reasons are as follows:

　　First of all, it conforms to the supplementary nature of the guarantor’s liability for compensation. The law gives the general guarantor the right to plead first, because the main debt is the debt that the debtor should have performed by himself, and the general guarantor’s guarantee responsibility is subordinate to the debt, which has a supplementary position, and only takes responsibility for the unfulfilled part of the main debt when the main debtor fails to perform. When the guarantee contract is invalid, the general guarantor’s liability for compensation also comes from the guarantee contract, which is also a supplementary debt. According to Article 17 of the Supreme People’s Court’s Interpretation on the Application of the Guarantee System of the Civil Code of People’s Republic of China (PRC) (Fa Shi [2020] No.28), when the guarantee contract is invalid, the liability of the guarantor at fault is limited to the part that the debtor cannot pay off, which is also supplementary. Similarly, when the guarantee contract is invalid, the general guarantor’s liability for compensation is also supplementary and should be protected by the right of defense in the first instance. Just because the guarantee contract is invalid, the general guarantor’s liability will lose the nature of supplementary liability.

　　Secondly, it meets the reasonable expectations of the parties when concluding a general guarantee contract. Although the surety’s liability for compensation is determined according to his own fault after the surety contract is invalid, it is different from the surety’s liability when the surety contract is valid. However, when the creditor and the surety sign a general surety contract, they usually don’t subjectively think that the surety contract is invalid, so both parties have the expectation that the general surety will be protected by the right of defense in the first instance, and the creditor usually doesn’t ask the general surety to bear the liability for compensation for the invalidity of the surety contract in advance.

　　Finally, it conforms to the internal logic of the system of contract validity. When the guarantee contract is invalid, the creditor’s benefits should not exceed those obtained when the guarantee contract is valid. In other words, the general guarantor should at least receive the same protection when the contract is invalid as when it is valid, so as to maintain the internal harmony of the contract validity system. When the guarantee contract is invalid, if the general guarantor loses the protection of the right of defense, the creditor can sue for compensation separately, which obviously goes against the logical order of the contract validity system and makes the guarantor lose the term interest when the guarantee contract is valid.

　　To sum up, when the guarantee contract is invalid, the general guarantor still enjoys the right of defense, which not only conforms to the nature of the guarantor’s liability, but also conforms to the reasonable expectations of the parties, and also maintains the organic unity of the contract effectiveness system.

　　Comment expert: Cheng Xiao, a professor at Tsinghua University Law School

　　Comments: the right of defense of first appeal, also known as the right of defense of retrieval. This right is a civil substantive right enjoyed by the general guarantor, rather than a simple right of defense in litigation, which is very important to it. Whether the guarantor has the right of defense is also the most fundamental difference between general guarantee and joint and several liability guarantee. In order to balance the interests of all parties and avoid being too strict with the guarantor, the second paragraph of Article 686 of the Civil Code of our country stipulates: "If the parties have no agreement or unclear agreement on the guarantee method in the guarantee contract, they shall bear the guarantee responsibility according to the general guarantee." At the same time, in the second paragraph of article 687, four situations in which the general guarantor loses the right of defense of the first action are strictly limited. The invalidity of a general guarantee contract is not the case that the guarantor loses the right of defense in the first instance as stipulated in this paragraph. In addition, the invalidity of the guarantee contract does not mean that the guarantor is completely exempted from liability. According to the second paragraph of Article 682 of the Civil Code, if the debtor, guarantor and creditor are at fault after the guaranty contract is confirmed to be invalid, they shall bear corresponding civil liabilities according to their faults. Although the guarantor bears the corresponding civil liability because of his fault, it does not change the essential feature that the guarantor is not responsible for his own debts. Therefore, if the general guarantee contract is valid, the guarantor has the right to plead first, and when the guarantee contract is invalid, the general guarantor has no right to plead first, which obviously violates the basic jurisprudence of equal treatment of the same thing, and artificially changes the interest structure among creditors, debtors and guarantors, which increases the responsibility of the guarantor. Therefore,This Q&A is undoubtedly correct about the view that the general guarantor still has the right of defense when the guarantee contract is invalid, and it is also convincing from three aspects: the nature of the guarantor’s liability for compensation, the expectations of the parties and the internal logic of the contract validity system.

　　Question 3: Does customer information belong to the company’s trade secrets?

　　Question and answer:Customer information mainly includes two parts, one is the customer’s name, address, contact information and other information, that is, basic information; The other part is information such as trading habits, intentions, and price affordability, that is, in-depth information. However, this classification does not necessarily affect the determination of whether customer information constitutes a trade secret. The criterion for judging whether customer information constitutes a trade secret lies in whether it meets the legal requirements of "unknown to the public, having commercial value and being kept confidential by the obligee", that is, secrecy, value and confidentiality. It is worth noting that the secret requirement is not generally known and easily obtained by the public, and it is not required to be known by no one else, nor is it required for others to pay enough. Compared with the trade secrets of technical secrets, the trade secrets of customer information have some particularity: the essence of customer information is information that can be collected, so the essence of infringing on the trade secrets of customer information is usually that the infringer saves the time and money cost needed to collect information through this infringement. Therefore, there is usually a time limit for the protection of trade secrets of customer information. Therefore, although the basic information is easier to obtain than the in-depth information, it only leads to the difficulty in identifying the secrecy of the basic information and the corresponding protection period is shorter. If the basic information does have commercial value and is large enough and difficult to collect, it may also meet the requirements of value and confidentiality, and then it can be recognized as a commercial secret, which needs to be recognized according to the specific circumstances of the case.

　　Comment expert: Professor and doctoral supervisor from the School of Civil and Commercial Economics of China University of Political Science and Law came to Tucki.

　　Comments: Customer information plays an important role in the company’s operation and development, but whether it constitutes a company’s trade secret and is protected by law should be judged according to the provisions of Article 9 of China’s Anti-Unfair Competition Law and the specific case. Q&A answers the question whether customer information belongs to the company’s trade secrets from three aspects: the composition of customer information, the basis for identification and the particularity of customer information as trade secrets. Answers accurately interpret the basic information and in-depth information in customer information, accurately understand and grasp the internal meaning of the provisions on trade secrets in China’s anti-unfair competition law, and analyze and answer the particularity of trade secrets of customer information compared with technical secrets. This question and answer is clear in logic, well-founded and correct in viewpoint, which has strong guiding significance for correctly judging whether the customer information can constitute the company’s trade secrets in a case.

　　Question 4: In a civil case in which the original judgment is upheld in the second instance, is the execution based on the judgment of the first instance or the judgment of the second instance?

　　Question and answer:In civil litigation, there are great differences between theoretical and practical circles on the basis of execution when the original judgment is upheld in the second instance. There are three main views: the first view is that the judgment of the first instance is the execution basis when the original judgment is upheld in the second instance. The second view is that the judgment of the second instance is the execution basis when the original judgment is upheld in the second instance. The third view is that the judgments of the first and second instance together constitute the basis for execution. To understand this problem, on the one hand, we should base ourselves on the clear provisions of the Civil Procedure Law, accurately understand the legislative intention, and accurately define what is an effective judgment and what is the basis for implementation. On the other hand, we should investigate and compare the different effects produced by different treatment methods. Through research, it is considered that the judgment of the second instance is the execution basis when the original judgment is upheld in the second instance. The specific analysis is as follows:

　　First, according to the law, the judgment of the second instance is effective for civil cases that have passed the second instance. Article 182 of the Civil Procedure Law clearly stipulates that the judgments and orders of the people’s court of second instance are final. After the first and second trials, there are two judgments, but there cannot be two effective judgments in the same case. After the case is judged by the first instance, if the parties choose to appeal, the judgment of the first instance will no longer take effect, and the judgment of the second instance will become effective. It should be noted that the entry into force of a civil judgment is based on the provisions of the Civil Procedure Law, rather than the determination of other judgments. That is to say, the judgment of the second instance is not the confirmation of the effectiveness of the judgment of the first instance, but the judgment of the case handling result is the same as that of the first instance, and its essence is the substantive judgment of "agreeing with the judgment of the first instance". Therefore, the judgment of the second instance is the effective judgment, and the view that upholding the original judgment of the second instance means that the judgment of the first instance is effective is debatable. According to Article 235 of the Civil Procedure Law, the civil judgment as the basis of execution should be a legally effective civil judgment, thus excluding the view that the judgment of the first instance is still the basis of execution or one of the basis of execution after the judgment of the second instance is made.

　　Second, just because the main text of the second-instance judgment is "upholding the original judgment" does not mean that the second-instance judgment has no payment content. According to Article 461 of the Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of People’s Republic of China (PRC) (hereinafter referred to as the Interpretation of the Civil Procedure Law), the effective legal documents as the basis for execution should have clear payment contents. The so-called explicit payment content refers to the ability to determine the payment obligations that the parties should perform according to the judgment documents, including money payment, delivery of specific things, and also the performance of certain acts specified by legal documents. This is the definition of executive power from the types of actions. For example, the judgment of the action of payment usually has the content of payment, while the judgment document of the action of confirmation often has no content of payment. For the case of upholding the original judgment in the second instance, the actual meaning of "upholding the original judgment" is that the main text of the judgment in the second instance is the same as that in the first instance, but it is briefly expressed as "upholding the original judgment", which cannot change the nature of the lawsuit. If the case itself is a lawsuit for payment and the judgment in the first instance also has clear payment contents, then "upholding the original judgment" in the second instance means that the payment contents determined in the judgment in the second instance are the same as those in the first instance, not that the judgment in the second instance has no payment contents. In practice, when filing a case for compulsory execution after the second instance upheld the original judgment, the judgment of the second instance upheld the original judgment as the execution basis, and at the same time, the applicant executor was required to submit the judgment of the original trial, so that the enforcement judge could determine the specific content of the original judgment in the execution.

　　Third, even if the original judgment is upheld in the second instance, the judgment of the second instance and the judgment of the first instance are not necessarily identical in ascertaining the facts and applying the law. Taking the judgment of the first instance as the execution basis or both the judgments of the first instance and the second instance as the execution basis will also involve the connection between follow-up and execution. According to Article 332 of the Interpretation of the Civil Procedure Law, if the original judgment or ruling finds that the facts or the applicable law are flawed, but the verdict is correct, the people’s court of second instance may maintain it after correcting the flaws in the judgment or ruling. However, in this case, although the judgment results are the same, the judgment of the second instance is by no means the same as that of the first instance in terms of fact finding and legal application. For example, the execution of the judgment of the first instance will lead to different processing results from the execution of the judgment of the second instance. For example, calculate the starting time of debt interest during the period of delay in performance after the judgment takes effect. The first instance ruled that one party paid interest at the market interest rate "within seven days after the judgment came into effect", and ruled that "if the obligation to pay money is not fulfilled within the period specified in the judgment, the interest on the debt during the delayed performance shall be doubled according to the law", and the second instance upheld the original judgment. At this time, if the judgment of first instance is taken as the execution basis, there may be a misunderstanding about "within seven days after the judgment takes effect".

　　Fourth, if the judgment of the first instance is taken as the basis for execution, the relevant expenses of the second instance will not be implemented. If the judgment of the first instance is taken as the basis for execution, the determination and burden of the acceptance fee of the appeal case and the appraisal fee that may occur in the second instance will not be implemented.

　　Commentators: Professor and Doctoral Supervisor of Law School of Renmin University of China, Vice President of china law society Civil Procedure Law Research Association, and Xiao Jianguo, Vice President of Executive Behavior Professional Committee of China Behavioral Law Society.

　　Comments: The determination of the enforcement basis when the original judgment is upheld in the second instance is a controversial issue in the current court enforcement practice. The answers explain the main reasons that "the judgment of the second instance is the execution basis when the original judgment is upheld in the second instance" from three aspects: the legal normative basis, the enforceability of upholding the original judgment and the difference between upholding the original judgment and the judgment of the first instance. Answering questions summarized three standpoints of the current theoretical and practical circles about the execution basis when the original judgment was upheld in the second instance. Based on the provisions of the current civil procedure law and judicial interpretation, the procedural jurisprudence behind the determination of the execution basis when the original judgment was upheld in the second instance was clarified by using the methods of literal interpretation and systematic interpretation. The views of answering questions are clear and accurate, the legal basis is sufficient, the theoretical explanation is clear and powerful, and it shows a solid professional foundation and rich practical experience, which has universal guiding significance for the practice of civil enforcement in China.

　　Question 5: After the house is renovated, no one lives in it. Is it considered as burglary to enter the house to steal property?

　　Question and answer:The core of this problem lies in the understanding of the scope of "household" in "burglary" Article 3, paragraph 2, of the Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Theft (Fa Shi [2013] No.8) stipulates: "Whoever illegally enters a residence that is relatively isolated from the outside world for the family life of others shall be deemed as’ burglary’." To identify "burglary", we should pay attention to the functional characteristics (for others’ family life) and the characteristics of the place (relatively isolated from the outside world) that "households" should have. During the decoration and placement of the house, although the residence involved is relatively isolated from the outside world and has the characteristics of "household", it has no functional characteristics because it is uninhabited and has not been used for family life of others. From the legislative point of view, burglary is defined as a crime of theft, with the aim of strengthening the protection of the personal rights of indoor personnel. Because burglary, once discovered by indoor personnel, will often turn into robbery, thus seriously endangering and endangering the personal of indoor personnel. Entering uninhabited houses usually does not have this problem. Therefore, the defendant’s behavior of stealing household appliances, furniture and other property during the period of house decoration and placement should not be regarded as "burglary".

　　Comment Expert: Peng Xinlin, Professor of Law School of Beijing Normal University and Editor-in-Chief of Research on Criminal Law Interpretation.

　　Comments: "burglary" is a type of larceny added in the Criminal Law Amendment (VIII) in 2011. How to identify the "household" in "burglary" has always been a difficult problem in judicial practice. Therefore, Article 3, paragraph 2, of the Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Theft makes special provisions. According to this regulation, providing for others’ family life and relative isolation from the outside world are the two main factors to identify "households". Dormitories, classrooms, offices, hotel rooms, temporary sheds, etc. are generally not recognized as "households" because they do not have the function of family life or can not be relatively isolated from the outside world. The reason why "burglary" does not require the amount or number of thefts is that this type of theft not only infringes on the ownership of public and private property, but more importantly poses a great threat to the personal safety of citizens, so special provisions must be made to meet the needs of severe crackdown. This answer is not a formal conclusion, but a proper explanation of the scope of "household" based on the functional characteristics and place characteristics that "household" should have, from the perspective that "burglary" infringes on legal interests, denying that the act of stealing property during the decoration and placement of houses constitutes "burglary", and grasping the essential characteristics of "household". The answer is correct, well-founded and clear in logic, which has important reference value and strong guiding significance for the accurate identification of "burglary" in practice.