Appellant (plaintiff of the original trial): GUANG ZHENG CO.LTD, 

    Domicile: Room 1, 12/F, King Ma Trade Building, 30-32 King Ma Lun Road, Tsim Sha Tsui, Hong Kong, PRC.

    Legal Representative: PENG BI HONG, Board Chairman  

    Appellant (plaintiff of the original trial): JAPAN CHINA FOOD CO.LTD

    Domicile: 15, 4Fan, Gong Qian Er Mu Ding , Shan Bin District, Tokyo, Japan 

    Legal Representative: He Tian Jia Shou, Board Chairman	

    Appellant (plaintiff of the original trial): LIQUIDATING GROUP OF XI??AN DONG LING REFRLGERATION EQUIPMENT CO.,LTD.

    Domicile: Tower F-2A, High?¤Tech Development Zone, Xi??an, Shan Xi Province, PRC.

    Legal Representative: PENG BI HONG, President of LIQUIDATING GROUP

    Appellee (defendant of the original trial): XI??AN JIAOTONG UNIVERCITY 

    Domicile: 28, Xiannin Xi Road, Xi??an, Shan Xi Province, PRC

    Legal Representative: XU TONG MUO, Headmaster

    Appellee (defendant of the original trial): TECHNICAL & ENGINEERING DEVELOPMENT CO. OF SHANXI  PROVINCE

    Domicile: Inside the Office Building of Provincial Planning Commission, Xincheng, Xi??an, Shan Xi Province, PRC

    Legal Representative: WANG YI, General Manager

    Appellee (defendant of the original trial): XI??AN JIAOTONG UNIVERCITY KETE COMPRESSO  TECHNIQUE EXPLOITING CO., LTD.			   

    Domicile: 28, Xiannin Xi Road, Xi??an, Shan Xi Province, PRC

Legal Representative: XIONG ZE NAN, General Manager

    Appellee (defendant of the original trial): XIONG ZE NAN, Femail, Sixty-five-year Old, of Han Nationality, Professor of Xi??an Jiaotong University  

    Domicile: Room 104-13-3, Xi??an Jiaotong University

    Appellee (defendant of the original trial): QIAO ZONG LIANG, Mail, Sixty-seven-year Old, of Han Nationality, Professor of Xi??an Jiaotong University  

    Domicile: Room 104-13-3, Xi??an Jiaotong University

    Appellee (defendant of the original trial): SHAN XI INVESTMENT CO.  

    Domicile: 92, Qingnian Road, Xi??an, Shan Xi Province, PRC

Legal Representative: QING JIAN MIN, Manager

    Appellee (defendant of the original trial): WANG XIN LIN, Mail, Sixty-five-year Old, a Retried Cadre of No.4 Academe of Space-Flight Industrial Co. 

    Domicile: No.4 District of Space-Flight, Tianwang Town, Baqiao District, Xi??an, Shan Xi Province, PRC  

    Appellee (defendant of the original trial): XI??AN SUNYIUNG SPACEFLIGHT INDESTRY CO.

    Domicile: Tianwang Town, Baqiao District, Xi??an, Shan Xi Province, PRC 

    Legal Representative: YE TING YOU, Manager


    Appellant, GUANG ZHENG CO., LTD.(hereinafter referred to as ?°GZC?±), JAPAN CHINA FOOD CO.LTD(hereinafter referred to as ?°CFC?±) and LIQUIDATING GROUP OF XI??AN DONG LING REFRLGERATION EQUIPMENT CO.,LTD. (hereinafter referred to as ?°DLLG?±), taking exception to the Civil Rule (File 2001 No. SCF1) rendered by the High Court of Shan Xi Province on a dispute over damage of infringement, versusing appellees, XI??AN JIAOTONG UNIVERSITY (hereinafter referred to as  ?°XAJU?±), TECHNICAL & ENGERRING DEVELOPMENT CO. OF SHANXI PROVINCE (hereinafter referred to as ?°T&E?±), XI??AN JIAOTONG UNIVERCITY KETE COMPRESSOR TECHNIQUE EXPLOITING CO., LTD., (hereinafter referred to as ?°KC?±), XIONG ZE NAN, QIAO ZONG LIANG, SHANXI INVESTMENT CO. (hereinafter referred to as ?°XIC?±), WANG XIN LIN and XI??AN SUNYIUNG SPACEFLIGHT INDESTRY CO. (hereinafter referred to as ?°SYC?±), lodged an appeal with this court. This court set up a collegiate bench, with the Presiding Judge occupied by Wang Yun and the attending of two Acting Judges, Ren Xue Feng and Chen Ji Zhong, to take up the cases and has now finalized the case.

    The three appellants in this case brought an action to the court of the original trail. The court of the original trail placed the case on a file; and after the trail, the court holds that: XI??AN DONG LING REFRLGERATION EQUIPMENT CO.,LTD. (hereinafter referred to as ?°DLC?±) is an enterprise with Chinese and foreign investment founded by joining the capitals from GZC, CFC,KC and SYC. Later, according to the official and written replay from the Manage Committee of Xi??an High?¤Tech Development Zone, DLC founded DLLG. During the period of liquidation, SYC brought an action for a declaratory judgment on sum of investment, regarding DLLG as the defendant, to the Intermediate People??s Court of Xi??an; the action got an effective finial judgment rendered by the High Court of Shan Xi Province. CFC and GZC brought an application to China International Economic and Trade Arbitration Committee at the same fact and the same cause, regarding SYC as the accused party; and the Arbitration Committee made the final arbitration as well. In the same period, DLLC brought an application to China International Economic and Trade Arbitration Committee at the cause that KC conducted dishonest act and breached the contract during the procedure of signing and fulfilling contracts and agreements, which made an economic loss to DLC. According to this application, the Arbitration Committee made the finial arbitration that KC shall pay 1,200,000RMB to DLLG to indemnify the economic loss of DLLG made by the breach. DLLC had brought to the People??s Court of Beilin District, Xi??an an action of contract dispute regarding equipment transfer, who had reached an effective judgment rendered by the Intermediate People??s Court of Xi??an. Now, based on the above-mentioned facts and causes, the three plaintiffs brought a tort action to this court again, which violates the stipulation of the CIVIL LITIGATION LAW OF PEOPLE??S REPUBLIC OF CHINA regarding that judgments and rulings that have already been in forcing shall be handled according to the procedure of appeal and the stipulation of the ARBITRATION LAW OF PEOPLE??S REPUBLIC OF CHINA regarding that if the parties bring an arbitration again or an action to a People??s Court at the same dispute, the arbitration committee or the court shall not accept. Three appellants asked to order Xiong Ze Nan and Qiao Zong Liang return back fees for technical service and salary they received during the period they occupying General Manager and General Engineer of DLC, which shall bring an arbitration to Labor Dispute Arbitration Committee in advance, based on the relative stipulations of the LABOR LAW OF PEOPLE??S REPUBLIC OF CHINA. The action of tort on right of reputation brought by XAJU, regarding Hong Kong Mirror Newspaper and Liu Wei as defendants, has no legal interested relation with the three appellants and shall be respect to another civil jural relation; thus, this case will no involve it. Based on Article 108 and Article 111, Paragraph 1(5) of the CIVIL LITIGATION LAW OF PEOPLE??S REPUBLIC OF CHINA and Article 9 of the ARBITRATION LAW OF PEOPLE??S REPUBLIC OF CHINA, the court adjudged as follows: Dismiss the claim of GZC, CFC and DLLG. The fees for the first trail are 8,5010RMB, which shall be paid by GZC, CFC and DLLG together.                  

    GZC, CFC and DLLG taking exception to the original ruling, appeal to this court, claiming: the original trail on merits did not base on legal procedure, the facts found in the ruling are wrong and the law it applied to is inappropriate. 1. This case is a joint tort case based on the same cause inflicting damage, the same harmful consequences and the same legal consequence, which involves a legion of colitigators, many consequent claimings and various evidences and has, in some degree, complexity. It is hard to compellent that the court of the original trail simply confirmed it as ?°the same dispute?± without going through the trail on merits.  2. This case is a dispute over restitution of property and damages caused by torts, which is in line with the essentials of complaint stipulated in Article 108 of the CIVIL LITIGATION LAW.  3. The original ruling dissevers and translates this case, which is a whole and complete claim based on the same cause inflicting damage, into irrelevance and odd disputes. The ruling arbitrarily holds that these disputes are the same with this case, which confuses and closes over the real legal facts and the basic of legal relations in this case. Moreover, the original ruling losses fair by not mentioning a word on codefendants?? positive and negative acts in every different form and different expressions to make feints, hide the truth and conduct the act to infringe the contract to the plaintiffs together.  4.The ruling rendered by the court of the original trail, as the court is the court of the second trail of dispute for a declaration on the amount of the investment and knows there is effective arbitration term written clearly in the Joint Venture Contract binding that the disputes between shareholders shall be settled through Arbitration, avoids to mention the fact that the court had jurisdiction over the case by force and adjudged the final judgment which is completely different to the arbitration.  5. The ruling made by the court of the first trail does not take the principle of taking facts as the basic and the law as criterion. On these grounds, please order: 1. Withdraw the original ruling.  2. Retrial the case by the court of the second trail, completely trail the facts of this case and the application of the law, and change the original trail based on laws.                               

    XAJU replied; 1. It is not in line with the impersonality facts that the appellant states the court of the first trail did not complied with the legal procedure.  2. The appellants enumerate several simple cases that have been trailed and have no relationship with each other, in which all the plaintiffs and the defendants have not qualified the subject qualification of a joint action. The appellants are not coplaintiffs and the appellee is not codefendants.  3. It is totally in line with the laws and correct for the court of the first trail to dismiss the ruling. Therefore, please order to dismiss the appeal and sustain the first ruling.          

KC replied: 1. The trail is complied with the normal procedure.  2. This case is composed by several cases, which have been made effective judgments and rulings and have no relationship to each other, and cases do not accepted by the court they brought to. To the first trail, the legal procedure is compiled with, the facts are found clearly and the application of laws and regulations to the law is correct.  3. This case is not in line with the regulations of joinder, thus the ?°indispensable joint action?± brought by the appellants cannot be sustained.  4. Liquidation Group, as a special group in a special period, which is complied special law derogating common law, shall ?°handle relative liquidating business according to the consultative principles?± based on regulations to special law.  5. It violates the laws and the regulations for the appellants to ask the court of the second trail to change the original judgment. On these grounds, please order to dismiss the appeal based on the laws. 

SYC and Wang Xin Lin replied: 1. The object of the litigation brought by the plaintiff at the first trail does not qualify the lawful conditions of joinder. DLLG brought an action without been consulted by the members of the liquidation group. The object of the litigation brought by the plaintiff in the original trail has already reached the final judgment rendered by the High Court of Shan Xi Province. Moreover, the action brought by GZC is brought over again by binding the judgment rendered by the court and the ruling rendered by the Arbitration Organization before. Thereby, it is completely correct for the court of the original trail to dismiss the action.  2. The dispute over investment between our company and DLLG has reached the finial judgment rendered by the High Court of Shan Xi Province. GZC and CFC brought an application for arbitration to the Arbitration Committee, based on the same facts and the same legal relation. To such case, Peng Bing Hong, again, illegaly patched it and several other cases that have been adjudged or arbitrated up and brought a tort action to the High Court of Shan Xi Province, which play tricks on the laws of our country. Three plaintiffs of the original trail are confused on who the plaintiff is and who the defendant is in this case, furthermore, the procedure it brought an action is completely out of line with the laws; thus shall be dismissed.  4. DLLG is composed by shareholders. Peng Bing Hong used seals and rights in his hand and usurped the name of DLLG at will to list other members of the Liquidation Group as defendants, without consulting with our part y and other shareholders, which is a serious unlawful act. Thereby, please dismiss the appeal.              

    Xiong Ze Nan replied: the principal is not a proper defendant; the litigation of this case is an abuse of litigious right. Please dismiss the appeal according to law.

    Qiao Zong Liang replied: 1. The description of the trail made by the appellants is not based on facts.  2. The reasons the appellants used to negative the first ruling cannot be sustained.  3. It is unreasonable that the appellants blindly look into delaying the service of the first ruling. Please the court of the second trail dismiss the appeal and sustain the original ruling.    

    Other appellees did not brought up written pleadings.

    Through the trail, this court holds that: this case is the dispute over torts and indemnity. From the Bill of Complain of the three appellants (plaintiffs of the original trail), the tort acts in the Complain, conducted by the codefendants in the original trail, occurred in the process regarding every party signing and fulfilling the Contract of Xi??an Dong Ling Refrigeration Equipment Co., Ltd. using Chinese and Foreign Investment (hereinafter referred to as ?° Contract of DL Joint Venture?±), the Articles of Xi??an Dong Ling Refrigeration Equipment Co., Ltd. using Chinese and Foreign Investment (hereinafter referred to as ?° Articles of DL Joint Venture?±) and the Agreement of Technology Transfer. Moreover, in the Contract of DL Joint Venture signed by GZC, CFC and KC, SYC, the Articles of DL Joint Venture as DLC is Side A and the accessory of the Articles of DL Joint Venture, the Agreement of Technology Transfer, signed by every shareholders of DLC, there is effective Arbitration Term written clearly as a faith. Based on therein Arbitration Term, all disputes related to the contract (article) or the fulfillment of the contract (article) that cannot be settled by negotiating, shall go through the Arbitration. Moreover, once, CFC and GZC have been to the applicator, regarding SYC as the party against whom the application is filed, to bring an application to the Arbitration Committee for disputes that occurred between them, based on the Arbitration Term in the Contract of DL Joint Venture. DLLG has brought an application, regarding KC as the party against whom the application is filed, to the Arbitration Committee for disputes that occurred between them, based on the Arbitration Term in the Agreement of Technology Transfer and the Articles of DL Joint Venture. Thereby, the tort dispute brought by the three plaintiffs of the original trail, regarding KT and SYC as the defendants, shall be settled by going through arbitration, based on the faith they agreed. The prosecution brought by the three plaintiffs to KC and SYC shall be determined to dismiss. The disposition in the original ruling regarding this section is correct and this court shall support it.             

    To the dispute over tort brought by the three plaintiffs of the original trail, regarding Xiong Ze Nan, Qiao Zong Liang and Wang Xin Lin as the defendants, the act of torts of the three defendants mentioned above that described in the dispute is the act of position conducted by the three people separately representing KT and SYC. Article 42 of the Supreme People??s Court on Several Questions in Relation to the CIVIL LITIGATION LAW OF THE PEOPLE??S REPUBLIC OF CHINA on Application stipulates that: ?°If the act of position or the act authorized of an employee employed by a legal person or another organization occurs a litigation, this legal person or this organization shall be the litigant.?± Thereby, it lacks legal basic for the three plaintiffs of the original trail to list the therein three people to be the defendants in this case. On these grounds, the prosecution brought by the three plaintiffs to these three people shall be determined to dismiss. The disposition in the original ruling regarding this section is correct and this court shall support it.      

    To the action of tort brought by the three plaintiffs of the original trail to XAJU, T&E and IC, from the content of the loss, describing in the Bill of Complain, which is made by the tort acts of codefendants, can hold that the plaintiffs of the original trail have direct interested relationship with this case, moreover, the clear defendant. The plaintiffs of the original trail brought concrete claims, facts and causes in the Bill of Complain. At the checkup stage, People??s Court merely requires the plaintiff to provide a certain facts and causes in form to determine if the court accept the case or not. However, the questions of whether these facts and causes are true or not and whether they are strong enough to support the claim or not will be find out at the process of the trail of the merits. Thereby, whether the act of tort described by the plaintiff is sustained or not will not affect the litigant??s complain to sustain. The three plaintiffs of the original trail bring a tort action against XAJU, T&E and IC shall be in charge of People??s Court, furthermore, the court of the original trail is the court at the domicile of the defendant, which has jurisdiction to this case. On these grounds, the action brought by the three plaintiffs of the original trail against XAJU, T&E and IC is in line with Article 108 of the CIVIL LITIGATION LAW, thus, the court of the original trail should accept. However, the dispute of transferring a Surface Grinding Machine (No. MM7132) between DLLG and XAJU has already reached the finial judge of the People??s Court; thus the action, concerned to the dispute of transferring the Surface Grinding Machine (No. MM7132) and brought by the three plaintiffs of the original trail, shall not be accepted by the People??s Court.           

    By the foregoing reason, the original ruling is partly wrong and shall be corrected. Based on Article 108 and Article 111, Paragraph 2 and Paragraph 5 of the CIVIL LITIGATION LAW OF PEOPLE??S REPUBLIC OF CHINA, Article 5 and Article 9, Paragraph 1 of the ARBITRATION LAW OF PEOPLE??S REPUBLIC OF CHINA and Article 42 and Article 145 of the Supreme People??s Court on Several Questions in Relation to the CIVIL LITIGATION LAW OF THE PEOPLE??S REPUBLIC OF CHINA on Application, this court now adjudges as follows: 

    1. Withdraw the Civil Ruling ( 2001 No. SCC1), rendered by High People??s Court of Shan Xi Province;   

    2. Dismiss the action brought by GUANG ZHENG CO., LTD., JAPAN CHINA FOOD CO.LTD. and LIQUIDATING GROUP OF XI??AN DONG LING REFRLGERATION EQUIPMENT CO.,LTD. versusing XI??AN JIAOTONG UNIVERCITY KETE COMPRESSOR TECHNIQUE EXPLOITING CO., LTD., XI??AN SUNYIUNG SPACEFLIGHT INDESTRY CO., XIONG ZE NAN, QIAO ZONG LIANG and WANG XIN LIN. 

    3. The action brought by GUANG ZHENG CO., LTD., JAPAN CHINA FOOD CO.LTD. and LIQUIDATING GROUP OF XI??AN DONG LING REFRLGERATION EQUIPMENT CO.,LTD. versusing XI??AN JIAOTONG UNIVERCITY, TECHNICAL & ENGIEERING DEVELOPMENT CO. OF SHANXI PROVINCE, and SHANXI INVESTMENT CO. shall be accepted by the High People??s Court of Shan Xi Province

    The fees of the trail are 50RMB, which GUANG ZHENG CO., LTD., JAPAN CHINA FOOD CO.LTD. and LIQUIDATING GROUP OF XI??AN DONG LING REFRLGERATION EQUIPMENT CO.,LTD. shall pay 25RMB and I??AN JIAOTONG UNIVERCITY, TECHNICAL & ENGIEERING DEVELOPMENT CO. OF SHANXI PROVINCE, and SHANXI INVESTMENT CO. shall pay 25RMB.

                                         Presiding Judge  WANG YUN                            

                                         Acting   Judge  REN XUE FENG

                                         Acting   Judge  CHEN JI ZHONG 

                                         25th July 2002

                                         Clerk           YANG HONG LEI