Civil Judgment — China Mobile v. Panke Technology — Mobile 400 Services

Civil Judgment

Plaintiff: China Mobile Communications Group Beijing Co., Ltd., with its registered address at No. 7 Dongzhimen South Street, Dongcheng District, Beijing; organization code: 72261170-0.

Legal representative: Zhou*, chairman and general manager.

Authorized representative: Cao Huanhuan, lawyer at Beijing Zhongyin Law Firm.

Defendant: Panke (Beijing) Technology Co., Ltd., with its registered address at Room 806, Floor 8, Building 1, No. 16 Chaowai Street, Chaoyang District, Beijing; registration number: 110105014037164.

Legal representative: Zhang**.

This Court accepted the telecommunications service contract dispute between the plaintiff, China Mobile Communications Group Beijing Co., Ltd. (hereinafter “China Mobile”), and the defendant, Panke (Beijing) Technology Co., Ltd. (hereinafter “Panke”), on 13 May 2015. A collegial panel was constituted in accordance with law and held a public hearing. Cao Huanhuan, the plaintiff China Mobile’s authorized representative, appeared at the hearing. The defendant Panke did not appear despite having been lawfully summoned. The hearing of this case has now concluded.

The plaintiff China Mobile alleged as follows: On 21 January 2013, the plaintiff and defendant entered into the China Mobile Communications Group Beijing Co., Ltd. Mobile 400 Business Service Agreement, under which the plaintiff agreed to provide Mobile 400 services to the defendant. The agreement provided that the defendant should settle the relevant charges for the preceding month with the plaintiff between the fifth day of each month and the fourth day of the following month. If the defendant failed to pay on time, the plaintiff was entitled to suspend services and to impose additional contractual penalties at 0.3% per day (three per thousand per day) on the unpaid amount until the defendant settled the arrears. If charges for any month remained unpaid three months after the end of that month, the plaintiff was entitled to terminate performance of the agreement, cancel Mobile 400 services, and continue pursuing all unpaid charges and contractual penalties. The defendant failed to pay the service charges and contractual penalties due for January through May 2014 and still did not pay after repeated demands by the plaintiff. The plaintiff therefore brought this action seeking: (1) termination of the China Mobile Communications Group Beijing Co., Ltd. Mobile 400 Business Service Agreement entered into by the parties; (2) payment by the defendant of CNY 100,000 in outstanding Mobile 400 service charges; and (3) payment by the defendant of CNY 109,800 in contractual penalties for the period before 4 May 2015, together with contractual penalties from 5 May 2015 until the date of actual payment, calculated on the outstanding service charges at 0.3% per day (three per thousand per day). The plaintiff also sought to have the defendant bear the litigation fees and public-notice fee.

The defendant Panke submitted no response.

Upon hearing the case, the Court found as follows: On 21 January 2013, the plaintiff and defendant entered into the China Mobile Communications Group Beijing Co., Ltd. Mobile 400 Business Service Agreement, under which the plaintiff agreed to provide Mobile 400 services to the defendant. The parties agreed that the agreement would take effect on the date both parties affixed their seals. If neither party gave written notice of termination upon expiry thirty days before the expiry of the agreement, the agreement would automatically be extended for one year after its term expired, and the same would apply upon expiry of each extension. If either party proposed termination upon expiry, it should notify the other party in writing thirty days before expiry, and the agreement would then terminate upon expiry. The service package chosen by the defendant cost CNY 20,000 per month. The defendant should settle the relevant charges for the preceding month with the plaintiff between the fifth day of each month and the fourth day of the following month. If the defendant failed to pay on time, the plaintiff was entitled to suspend Mobile 400 services and to impose additional contractual penalties on the unpaid amount at 0.3% per day (three per thousand per day), from the date the charges became overdue until the date all arrears were paid. If any month’s Mobile 400 charges remained unpaid three months after the end of that month, the plaintiff was entitled to terminate the contract, cancel the Mobile 400 services activated for the defendant, and continue pursuing all unpaid charges and contractual penalties. The defendant failed to pay Mobile 400 service charges for January through May 2014, totaling CNY 100,000. The plaintiff ceased providing services to the defendant starting in June 2015.

The foregoing facts are corroborated by evidence in the case file, including the parties’ statements, the China Mobile Communications Group Beijing Co., Ltd. Mobile 400 Business Service Agreement, the Mobile 400 Business Supplementary Agreement, and the service registration form.

This Court considers as follows: Under China’s Civil Procedure Law, parties have the right to respond and to challenge the evidence submitted by the opposing party. In this case, the defendant Panke, having been lawfully summoned by this Court, refused without a legitimate reason to appear and defend the action; it is deemed to have waived its rights to respond and to challenge the evidence. Parties shall fully perform their obligations as agreed. In this case, the defendant failed to pay the relevant charges to the plaintiff on time as required by the contract, and the plaintiff has ceased providing services in accordance with the contract. This Court therefore grants the plaintiff’s claim to terminate the contract. The plaintiff now seeks payment by the defendant, in accordance with the contract, of outstanding Mobile 400 service charges of CNY 100,000, contractual penalties of CNY 109,800, and further contractual penalties. The amounts are reasonable and the grounds are sufficient, and this Court grants those claims. In summary, pursuant to Articles 60, 93 and 113 of the Contract Law of the People’s Republic of China and Article 144 of the Civil Procedure Law of the People’s Republic of China, this Court enters judgment as follows:

I. It is confirmed that the China Mobile Communications Group Beijing Co., Ltd. Mobile 400 Business Service Agreement entered into by the plaintiff, China Mobile Communications Group Beijing Co., Ltd., and the defendant, Panke (Beijing) Technology Co., Ltd., is terminated.

II. Within seven days after this judgment takes legal effect, the defendant, Panke (Beijing) Technology Co., Ltd., shall pay the plaintiff, China Mobile Communications Group Beijing Co., Ltd., Mobile 400 service charges of CNY 100,000.

III. Within seven days after this judgment takes legal effect, the defendant, Panke (Beijing) Technology Co., Ltd., shall pay the plaintiff, China Mobile Communications Group Beijing Co., Ltd., contractual penalties for the period before 4 May 2015 of CNY 109,800, and shall pay contractual penalties for the period from 5 May 2015 until the date of actual payment, calculated on the outstanding Mobile 400 service charges at 0.3% per day (three per thousand per day).

If the monetary payment obligations are not performed within the period specified in this judgment, double interest on the debt for the period of delayed performance shall be paid in accordance with Article 253 of the Civil Procedure Law of the People’s Republic of China.

The case acceptance fee of CNY 4,448 and the public-notice fee of CNY 560 shall be borne by the defendant, Panke (Beijing) Technology Co., Ltd., and shall be paid within seven days after this judgment takes legal effect.

A party dissatisfied with this judgment may submit a notice of appeal to this Court within fifteen days of service of the judgment, provide copies according to the number of opposing parties, and pay the case acceptance fee for the appeal, to appeal to Beijing No. 2 Intermediate People’s Court. If the case acceptance fee for the appeal is not paid within seven days after the appeal period expires, the appeal shall be treated as automatically withdrawn.

18 September 2015