The special craftsman lawyer said that the case | sue to terminate the commission contract, claim compensation, and the premise of compensation is established. (2021) Jingmin Shen No. 2145
Kong and Zhang signed a commission agreement on a certain matter, agreeing that if certain conditions were met, Zhang would pay Kong a commission. After the dispute arose between the two parties, Kong, as the plaintiff, sued Zhang, demanding rescission of the contract and compensation for losses, the first and second instances did not support it, Kong applied for a retrial, and the retrial collegial panel held that:
(1) Kong filed a lawsuit with the court of first instance to confirm the termination of the Commission Agreement signed by the two parties, pay Kong 600,000 yuan in losses for the termination of the contract, and compensate for the corresponding losses. Whether Mr. Zhang had breached the contract and caused Kong to sign the Commission Agreement with him could not be realized. Zhang's failure to pay the commission according to the contract was due to the failure to fulfill the payment terms agreed in the contract, and there is no evidence to prove that Zhang signed a new cooperation agreement with Xuemei in violation of the Commission Agreement or had other breaches of contract. As to whether the facts of Zhang's breach of contract proposed by Kong in the second instance were established, the court of second instance has discussed them one by one, and this court has confirmed them. The evidence submitted by Kong could not prove that Zhang had breached the contract and caused him to sign the Commission Agreement with Zhang to be unattainable, and the courts of first and second instance did not support his litigation claim, which was not improper.
(2) For Kong's application for investigation and evidence collection submitted to the court of second instance, the court of second instance conducted relevant investigation and verification with Xuemei Company, and the court of second instance did not collect the main evidence that was not necessary for the trial of the case, and the trial procedure was not improper. In summary, the court of first instance found that the facts were clear, the law was correct, and Kong's application for retrial did not comply with the provisions of items 5 and 6 of article 200 of the Civil Procedure Law of the People's Republic of China.
This means that the premise of Kong's claim is that Zhang is in breach of contract, and the breach of contract makes the purpose of Kong's commission impossible to achieve, and only then can we talk about liquidated damages. In addition, for some evidence, the application was made to collect it, but the collegial panel did not collect it but used the investigation to verify or believe that the evidence applied for collection was not related to the case, and the collegial panel may not collect it ex officio.
The above is for reference only.
