What is an example of the principle of country name treatment?
National treatment, also known as equal treatment, means that the host country should give foreigners the same civil rights status as its own citizens. The scope of application of national treatment usually includes: domestic taxation, transportation, transit, port ship treatment, ship rescue in distress, trademark registration, invention application, patent right, copyright, civil litigation right, etc. Fishing in territorial waters, land purchase and retail trade are not included.
Brief introduction of the case:
In 2008, the freezing weather in the south caused a disaster, dragging the Wal-Mart Chunbao branch, which just opened in Zunyi City, into the whirlpool of litigation. The story begins with cold weather. On September 9, 2008 1 month/KLOC-0, Wal-Mart opened its Chunbao branch in the outer ring road of Honghuagang District, Zunyi City on the second day. The lively opening ceremony and crowded people seem to have nothing to do with the freezing climate outside, and the temperature of MINUS 2 degrees does not hurt people's shopping enthusiasm at all. At about 19 this afternoon, a 37-year-old male doctor in Zunyi Hospital claimed that he was injured on a flight of stairs when he walked out of the Wal-Mart store after shopping. After a period of treatment and rehabilitation, the male doctor brought Wal-Mart to court with a complaint, claiming that Wal-Mart failed to fulfill its security obligations, causing 10 disability damage, and demanding that Wal-Mart compensate for economic losses such as disability compensation of about 50,000 yuan.
After receiving the copy of the complaint, Wal-Mart entrusted me as the agent of Wal-Mart SZITIC Department Store Co., Ltd. and Zunyi Chunbao Branch of Wal-Mart SZITIC Department Store Co., Ltd., and after accepting the entrustment, I conducted necessary investigation and evidence collection, and made the following legal and technical treatments to this case.
Defense points:
After accepting the entrustment, I made a brief reply to the plaintiff's complaint from four aspects.
1. The Respondent did not go to the Respondent or any branch of the Respondent for shopping, and the Respondent only assumed the obligation to protect the personal and property safety of consumers or potential consumers within its business premises or actual control and control premises.
2. The respondent didn't know where the respondent claimed that the fall happened. As a person with full capacity for civil conduct, the respondent should be able to foresee that traveling and walking in freezing weather should be cautious to avoid accidents and damage the facts.
3. The Respondent has no evidence to prove that on June 5438+20081October 19, within the business premises of the Respondent, the Respondent did not take safety measures such as deicing and snow sweeping.
4. Judging from the facts that the respondent admitted to the plaintiff, because the respondent did not commit any infringement on the respondent and the respondent was careless, the damage caused by its own fault may not be caused by ground icing, so the respondent should bear the consequences of the damage caused by its own fault. Request the court to reject all the claims of the respondent.
Two court trials
In the two court trials, the plaintiff provided the following evidence to claim rights: 1, and the copy of the shopping receipt claimed to form a consumption contract relationship with the defendant Wal-Mart Chunbao branch; 2. Zunyi Evening News stated the temperature of that day, proving that the plaintiff fell down because of freezing weather, and Wal-Mart failed to fulfill its safety guarantee obligation of shoveling ice and removing snow; 3. A transcript of the plaintiff's first aid in the emergency center of Zunyi Hospital, recording that the plaintiff was transported to the defendant Zunyi Hospital by the ambulance of the hospital; 4. A set of disability appraisal conclusion documents, evidence and bills prove the economic loss caused by the plaintiff's careless fall.
My cross-examination and agency opinion:
1. The plaintiff still could not provide the original shopping receipt for daily necessities purchased from the defendant, so the copy of the shopping receipt provided at the first court session could not be checked with the original. According to the provisions of Article 69 of the aforementioned judicial interpretation, photocopies and reproductions that cannot be checked with the originals and objects cannot be used as the basis for determining the facts of the case. At the same time, the plaintiff did not provide evidence to prove that the fact that he fell was in the defendant's business premises or disposable control premises. Therefore, according to the second paragraph of Article 2 of Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings (hereinafter referred to as "Evidence Provisions"), the plaintiff shall bear the result of losing the case.
2. Zunyi Evening News June 65438+1October 65438+September 2008, according to the weather forecast, only shows that the temperature of that day is zero to MINUS two degrees. I don't know if it was frozen that day (freezing, freezing is also called freezing rain). Simply put, it is a mixture of ice and snow under the action of strong cold air, and sometimes even ice and snow. Therefore, the plaintiff claimed that there was no reason for the defendant to fail to clear the ice on the road due to freezing, which caused the plaintiff to fall.
3. At the first court session, the plaintiff submitted the medical records of the emergency center of Zunyi Hospital without seal. According to the plaintiff's statement, the plaintiff's "accidental fall" was clearly and accurately recorded. In the second hearing, the sealed medical record submitted by the plaintiff was once again missing words; Secondly, it is ridiculous that the unopened medical records submitted by the plaintiff to the trial court during the first trial disappeared from the trial court file. Therefore, it is certain that the plaintiff used his status as an employee of Zunyi Hospital to issue false and untrue medical records. June 5438+ 10 19, 2008 is the second day of the opening of Chunbao Branch. According to the plaintiff's claim, the falling place is at the overpass entering Chunbao Branch, and there is an ambulance in the emergency center. Then the occurrence of such a major fact will definitely leave a deep impression on people. Michaels, the operator, and Yuan Mou, the owner (business hours are from 8 am to 22 pm every day) will certainly know this fact. In fact, according to our inquiry record (with a copy of the operator's business license and ID card), the witness appeared in court for cross-examination (and provided the original ID card and business license for the court to check). The true, legal and effective evidence shows that the fact that the plaintiff fell is not within the defendant's business premises and actual control.
4. The plaintiff provided the appraisal conclusion that the fall resulted in grade 10 disability, which also showed that the fall of the plaintiff that night was not serious. As a young, healthy and strong middle-aged man, the plaintiff didn't need an ambulance at all. Therefore, the false medical records of the emergency center issued by the plaintiff that night are not true, which can be further confirmed.
5. The plaintiff and his agent admitted in court (according to the third paragraph of Article 8 of the Evidence Regulations, this admission behavior should be confirmed as valid evidence): After he fell that night, please ask the roadside pedestrians to inform the defendant's service personnel to help him to the defendant's place. According to the plaintiff's self-admission behavior, it is confirmed that the place where the plaintiff fell is not within the defendant's business premises and control. According to the plaintiff's statement, if the defendant's service personnel feel aggrieved by Lei Feng's behavior, it will not only make the law unfair and unjust, but more seriously, it will make the law break through the moral bottom line and warn people not to do good deeds in the future, otherwise they will get into trouble.
6. The fire-fighting acceptance certificate submitted by the defendant, the cleaning contract signed with the cleaning company and the cleaning scope stipulated in the contract, the contents of the audio-visual materials of the defendant in organizing employees to clear snow in snowy weather, the two security captains of Fortune Company and the owner of michaels Company deicing and sweeping snow on the overpass in snowy weather, and laying carpets and cardboard, which show that the defendant has fully fulfilled his security obligations not only from the hardware of his own business premises, but also from the software outside the business premises. Because the principle of fault liability is applied in this case, judging from the constitutive requirements of tort, the defendant is not at fault when he has fulfilled his security obligations. According to the jurisprudence of tort law: no fault, no compensation. Therefore, the defendant has no obligation to compensate the plaintiff for his own careless fault.
The agent believes that the original defendant lacks evidence to prove that he has formed a consumer contract relationship with the defendant and is the defendant's consumer or potential consumer. Moreover, through the complete and sufficient evidence chain, it is revealed that the defendant, as a top 500 operator in the world, not only has a complete safety guarantee system to ensure the safety of the business premises, but also has a series of scientific and reasonable safety precautions to prevent accidents. I have fully fulfilled my safety obligations. According to the constitutive requirements of the infringement of the duty to ensure the safety of the business premises, the defendant is not at fault and does not assume responsibility. I urge the court to reject the original application according to law.
Trial and judgment results:
The Honghuagang District People's Court held that the focus of the dispute in this case was whether the original defendants had formed a consumer service contract relationship and whether the defendants had fulfilled their security obligations within a reasonable limit. During the trial, the plaintiff produced a copy of the shopping receipt on the day of the defendant's murder and the medical records of the emergency center of Zunyi Hospital, and could not mutually confirm the consumption contract relationship between the original defendant and the exact place where the plaintiff suffered damage. Moreover, the plaintiff has no corresponding evidence to prove that the defendant did not do his best to protect the safety of the consumer plaintiff and caused damage. According to the second paragraph of Article 2 of the Supreme People's Court's Provisions on Evidence in Civil Proceedings, if there is no evidence or the evidence is insufficient to prove the facts identified by the parties, the parties with the burden of proof shall bear the adverse consequences. The court did not support the plaintiff's request. The witnesses, physical evidence and audio-visual materials presented by the defendant in the trial can mutually prove that the defendant fulfilled his obligation to ensure the safety of the stairs outside the supermarket within a reasonable limit during the plaintiff's injury. If personal injury is caused by violation of safety guarantee obligations, the principle of fault liability shall be applied. The operator shall bear the responsibility only if there is fault, and the defendant has provided sufficient evidence to prove that he has reached the degree of care required by laws, regulations or operating procedures, and the defendant has argued that he has fulfilled his safety guarantee obligations within a reasonable limit, and there is no fault in the damage to the plaintiff. This court will accept it. Accordingly, the plaintiff's claim was rejected in accordance with the second paragraph of Article 2 of the Provisions of the Supreme People's Court on Evidence in Civil Proceedings.
At this point, I drew a perfect ending for Wal-Mart's rights protection. As a foreign enterprise, Wal-Mart has obtained national treatment in the field of civil and commercial law in China (national treatment is also called equal treatment, which means that the host country should give foreigners the same civil rights status as its own citizens. Legal principles for concluding trade treaties. It means that a country gives foreign citizens, enterprises and ships the same treatment as its own citizens, enterprises and ships in civil matters, which is usually included in trade treaties in the form of national treatment clauses. The scope of application of national treatment usually includes: domestic taxation, transportation, transit, port ship treatment, ship rescue in distress, trademark registration, invention application, patent right, copyright, civil litigation right, etc. It does not include fishing in territorial waters, land purchase and retail trade. My rights protection for Wal-Mart this time not only reflects the success of the case itself, but also reflects the problem of saving tens of thousands of yuan for Wal-Mart. It also highlights that People's Republic of China (PRC), as a vast country, has given foreign companies national treatment status, and China's laws, judicial organs and practicing lawyers will protect the legitimate rights and interests of foreign companies according to the national treatment status.