The word

Respected judge, judge:

   Heng Yi law firm commissioned the defendant, A company and B company in accordance with the law, appoint me as chairman of the two defendants in a trial litigation agent. The agent after careful reading the case file material, analysis of the relevant evidence, to participate in the trial, the case put forward the following opinions for the agent, the collegial panel reference:

   One, the same fact also suggests that the breach of contract and infringement of two claims, in violation of the provisions shall not abuse of litigation rights, in the law does not match.

   1. the plaintiff in the case there wasn't enough evidence to prove the first defendant A company violations of their rights act and the facts.

   The readme is A company dismantle its production and release, billboard, but only to provide a mobile phone text messages and the newspaper statement to prove. But after the examination found that the content of the message, vague, specific text does not specify A and remove the advertising business, and no other evidence to confirm each other, therefore not admissible. Another newspaper statement is subjective statement and understanding of the plaintiff and the M group, non determine the objective facts, and the content of the statement is not clear A company is removed advertising behavior.

   The 2. law of tort liability and liability for breach of contract is the competition between the parties to a contract, the right of claim for breach of contract, the creditor may choose to treatment and compensation in accordance with the contract or tort case (see "contract law" article 122nd). But the plaintiff in the case as a defendant in the contract relative square B company as a defendant and with no contract between third square A company, is obviously not in conformity with the provisions of tort liability and liability for breach of competition. From the procedural law, should belong to different subject matter of litigation, two independent appeal, not and prosecution.

   Even if the 3. is in accordance with the provisions of the competition, the same damage nor put forward double request, which is due to the fact that the same damage according to the contract law, tort different can produce different request right, if it belongs to the same injury, people can choose the right one for processing, but not for the double request, overlapping the legal responsibility can only be used once. For example: the breach of the complaint filed on the performance of the damage to the interests of the right to obtain compensation for the tort and the compensation. The plaintiff is required to B company to continue to perform the contract, and asked A to restore its advertising facilities and release, double request belongs to complete overlap.

    To sum up: the first defendant A companies prosecution shall be rejected.

   Two, the case with "contract law" article110Exceptions shall continue to perform the contract, the plaintiff requests should not support.

   "Contract law" the 110th stipulation: "if a party fails to perform the non pecuniary debt or non monetary debt obligation does not comply with the contract, the other party may request fulfillment, but with the exception of the following circumstances: (a) the law or the fact that can not be fulfilled; (two) the subject matter of the obligation is not suitable for specific performance or perform cost too high; (three) the creditor fails to fulfill the request within a reasonable period of time."

   In this case, the defendant has the burden of proof to the collegiate bench detection through professional appraisal institutions, the H building has been overwhelmed, the roof has not increased load. The reason to dismantle the billboard M group and has not placed any advertising facilities in the wings, the reason is this. If the plaintiff insisted on recovery in the roof advertising facilities, they have to pay expensive reinforcement of building, and Guiyang city sign building built bear H the last century 60's building be destroyed on one day, great risk caused by countries and people's personal, property of double loss. Therefore, on the basis of the provisions of "contract law" article 110th, in this case the plaintiff to continue to fulfill the request is not supported.

   Three, the plaintiff andBThe company signed a contract with flaws, is not the right person for ratification and lead to invalid contract.

   In the trial process, have been identified: B and A are A is generated after the split company, and in the A resolution, H building ownership of Guiyang City A, split A bureau cancel, transfer of ownership to A company. B, which had never experienced ownership, use right and disposition right H building, also did not have A or A companies signing authorization. Accordingly, the plaintiff and B company signed in 2003 ad site lease contract belongs to the "contract law" article fifty-first "no disposition disposition of property of others" of the contract, and the contract without the right to ratify the contract. Although the plaintiff argued that B and A are A within the group of brothers, but they are two independent legal person has the right to dispose of, different independent assets. And the plaintiff as a professional advertising company, very clear set up outdoor advertising implementation must have the property that the lessor shall can handle the relevant planning approval. It does not identify whether B has H building ownership only by its A subsidiary of the company and the contract, there is the fault of negligence subjective fault.

   Four, the plaintiffs claim request cannot be its nearly two million yuan can get profit loss was established.

At the hearing, the presiding judge interpretation, the plaintiff agreed to continue to perform the contract can not be the case for compensation in the nearly two million yuan can get benefit loss. In addition to reason about the validity of the contract before the point, this request has the following two reasons to refute the plaintiff:

   1. advocates have loss of benefits should first clear the loss is inevitable consequences of breach of contract. But in this case the plaintiff with evidence only signed with the M group "advertising agreement", the agreement is written publication costs 65 yuan per year, but contains the distribution costs, and the agreement is only a year, to 2005 June closing. After the expiry of the agreement, the plaintiff can renew and M group is unknown, does not necessarily occur. In addition to the plaintiff before the 2005 ad removal did not handle well the advertisement issued by the relevant administrative licensing procedures, will be in 2008 before the expiration of the contract shall be compulsory administrative demolition is unknown. Therefore, whether the plaintiff is bound to get the 2000000 of the gains to sure.

   2. can get profit loss must be caused by the fault behavior of the defaulting party. The defendant in this case have been to court to clarify, removing ads because after tests found the architecture of H building has been overwhelmed, in order to ensure building security, the roof has not set up advertising facilities, increase the load. This fact is belong to the original, the defendant had not foreseen, can not avoid and overcome the objective situation and natural phenomena, which belongs to the "contract law" the second paragraph 117th under the force majeure. The defendants have no fault, according to the first paragraph of "contract law" 117th and "general principles of civil law" 107th article can not assume responsibility.

   The above views, please reference, the adoption of the collegial panel.

                                                Heng Yi law firm

                                                    The songXun

                                                May 18, 2007