associate professor of Tsinghua University School of Law
Abstract: The saying "南山必胜客" has been widely spread, reflecting the public's concern and anxiety about whether capital has or is "capturing" local justice. In other words, with the rise of super private capital such as Tencent, there is controversy over whether a "capital capture" type of judicial protectionism is emerging. Through quantitative analysis of Tencent's judgments publicly available online and extended qualitative analysis around key cases, we found that Tencent's victory rate in Nanshan Court is not as exaggerated as media hype, and there is no evidence to suggest that Nanshan Court habitually biased it. The impartiality of China region's local courts is generally trustworthy, and the civil judicial reform is moving towards a better rather than a worse direction. The fundamental reason why Tencent is more likely to win is that it is a "frequent customer of the court" and has more resources to influence the outcome of litigation compared to the opposing party.
Key words: "南山必胜客"; Judicial local protectionism; Victory rate; Frequent court guests; Litigation capacity;
Since the 1980s, as an extension of local protectionism in the field of civil trial and execution, the phenomenon of "judicial local protectionism" has attracted high attention from both domestic and foreign academic circles. As is well known, judicial protectionism is not a standardized academic concept. In a broad sense, it refers to the judicial phenomenon where local courts habitually favor local parties and discriminate against foreign parties in the process of handling cases. In civil and commercial cases, it manifests as that foreign parties are more difficult to win as plaintiffs than local parties, and are more likely to lose as defendants. However, when foreign parties apply to enforce the property of local enforced persons, they are more likely to face delays and difficulties from the court. Judicial protectionism undermines judicial fairness, deteriorates the business environment, undermines the image of courts in the eyes of the public, and also affects the reputation of China's judicial system and rule of law construction internationally.
In the past, the academic community generally attributed judicial local protectionism to the intervention of local party and government organs and their leaders in court cases. This kind of "power intervention" judicial local protectionism, on the one hand, stems from the local management formed by fiscal decentralization, administrative contracting, and promotion competition ("political championship") under the "Nomenklatura" system. Local party and government organs and their leaders have the driving force to intervene in justice, and protect those enterprises that provide tax, budgetary foreign funds and other benefits to the local; On the other hand, it stems from the dependence of local courts on local party and government agencies in matters such as personnel, funding, and infrastructure, which gives local party and government agencies the power to intervene in the judiciary. Of course, some scholars have pointed out that since 1993, with the implementation of reforms such as tax sharing system reform, state-owned enterprise reform, cadre relocation and regular mobility, as well as the promotion of the decentralization of court "personnel and property" reform, the driving force and support force of local party and government organs to intervene in local court cases have significantly decreased. Since the 18th National Congress of the Communist Party of China, with the implementation of judicial reform measures such as unified management of court personnel, property, and provincial (city) level, and intervention in the entire judicial process, this downward trend has become increasingly evident. On the contrary, large enterprises no longer rely solely on establishing close ties with local governments in order to seek more stable and reliable government enterprise relationships, but instead pay more attention to their relationship with the central government, thus presenting a trend of "surpassing local protectionism" overall. Therefore, although the current "power intervention type" judicial protectionism cannot be completely eradicated, it seems to be no longer common. Of course, this does not mean that the phenomenon of judicial protectionism has completely disappeared. On the contrary, hidden behind the "power intervention type" judicial protectionism, based on the social network formed by informal communication, local parties are more likely to exert influence on judges, thereby obtaining additional attention from judges to their interests. The resulting judicial phenomenon of courts favoring local parties can be referred to as "relational operation" judicial local protectionism. Due to the frequent involvement of local party and government leaders, judicial leaders, and other parties in the operation of "relationship", scholars and the public often confuse it with "power intervention" judicial local protectionism.
Unlike the two types of judicial protectionism mentioned above, in recent years, with the rise of super large private enterprises, the impact of private capital on the judicial decisions of local courts has received increasing attention. This type of enterprise mainly engages in business activities in the fields of internet comprehensive services, financial services, and other fields, which are closely related to the daily life of the public. Therefore, they encounter friction and disputes with natural persons, small and medium-sized enterprises, and other entities almost every day, some of which may go to court. Under the current system of territorial jurisdiction and contractual jurisdiction in civil litigation, most lawsuits are concentrated in the courts of the place where such enterprises reside. This type of enterprise has achieved a high success rate in the court of the place of residence, gaining an overwhelming advantage over non local parties, which has caused dissatisfaction from the other party and the public. Influenced by this, taking "南山必胜客" as a typical example, reports of ridiculing and ridiculing Megacorporation under special protection of the local court began to spread on the Internet. This raises doubts about local protectionism in the judiciary: is capital "capturing" local justice? Although this phenomenon is intertwined with factors such as political or administrative power, social relations, etc., capital, especially super private capital, occupies a significant position and constitutes the most important variable among them. Therefore, this article summarizes it as "capital capture type" judicial local protectionism. The existence and universality of this type of judicial bias has become a central issue in the study of judicial protectionism in the new era.
In order to test the authenticity of "capital capture type" judicial local protectionism, this article conducts an empirical analysis of the judgment made by the Nanshan District People's Court of Shenzhen (hereinafter referred to as Nanshan Court), with Shenzhen Tencent Computer System Co., Ltd. (hereinafter referred to as Tencent or Tencent Company) as the plaintiff or defendant, from both quantitative and qualitative perspectives. Specifically, this article first uses the "China Judgment Document Network" as a search platform to conduct full sample statistics and analysis of Tencent related judgments made by Nanshan Court from 2018 to 2020, to verify whether Tencent has an abnormally high winning rate, and to discuss the findings of quantitative research; Select two widely reported and recognized judgments that constitute "different judgments in the same case", and conduct an "extended case" method study to compare the reasoning and results of Nanshan Court and other local courts in Tencent related judgments.
The research in this article found that Tencent's victory rate in Nanshan Court is relatively high, but it is not as exaggerated as the media portrays. Statistical data shows that using different measurement indicators, Tencent's success rates as plaintiff and defendant in Nanshan Court show a trend of increasing and decreasing, and its annual performance is not stable, with significant differences in individual cases. Through text analysis of the key case judgment, no conclusive evidence was found that Nanshan Court favored Tencent. In summary, the existence of "capital capture type" judicial protectionism cannot be confirmed. In this regard, taking Nanshan Court as an example, the fairness of China region's local courts is generally trustworthy, and the civil judicial reform is moving towards a better rather than a worse direction. As for Tencent's high success rate and ability to win key cases in Nanshan Court, an effective explanation can be obtained from the theoretical framework of "one shot/repeat player". The litigation capabilities of Tencent and the other party are extremely unequal. Tencent's resources to a considerable extent determine that it is not only more likely to win, but also able to win in key cases that are novel, significant, and have industry policy implications. What really deserves attention in the "南山必胜客" phenomenon may not be judicial local protectionism, but the substantive equality of litigation capacity between the parties.
1 Viewing the Phenomenon of "南山必胜客" from Statistical Data
In July 2021, the author led a research team to set up search criteria on the Chinese Judgment Documents website as follows: firstly, the trial court: Nanshan District People's Court of Shenzhen; Secondly, type of document: judgment; Thirdly, the party involved: Shenzhen Tencent Computer System Co., Ltd; Fourthly, type of disclosure: document disclosure. The search results show that a total of 522 judgments related to Shenzhen Tencent Computer System Co., Ltd. were released from 2018 to 2020. After preliminary screening, it can be found that the judgments of different case numbers are highly similar. The root cause of this phenomenon lies in the court's "string case" operation. In view of this, this article combines "string cases" into one, that is, no matter how many "string cases" are retrieved, they are counted as one. After this technical filtering, there were a total of 435 judgments related to Tencent over the past three years, including 33 judgments from Tencent as the plaintiff and 402 judgments from Tencent as the defendant, forming the total sample for quantitative analysis.
In cases where Tencent is the defendant, it is common for the plaintiff to use it as a "tool" for determining jurisdiction or collecting evidence. Specifically, the obligee found that the official account, WeChat account, video account and other user accounts infringed intellectual property rights, Personality rights and other acts, but did not know the location and identity of the infringer. When the rights holder filed a lawsuit with the Nanshan Court, Tencent and the infringer were listed as joint defendants. This is to determine the territorial jurisdiction of the case, and to require Tencent to disclose the infringers behind the user account. Of course, according to the "safe haven" principle or the "notice delete" rule, Tencent can easily defend against promptly deleting infringing content. Therefore, plaintiffs often only demand Tencent to fulfill the deletion obligation and do not expect Tencent to bear liability for damages. There are a total of 126 judgments in which the plaintiff did not request Tencent to bear the liability for monetary damages. After deduction, there are a total of 276 judgments in which Tencent serves as the defendant and is listed as revised data. Among them, 194 judgments were filed by two companies, claiming that Tencent and different infringers were jointly and severally liable for compensation for image copyright infringement. These cases, apart from the actual infringers, have highly similar circumstances, and the Nanshan Court also handles them in bulk according to ordinary joint litigation. From the judgment results, Nanshan Court without exception rejected the plaintiff's lawsuit request against Tencent. If these judgments are retained, it will have a significant impact on Tencent's victory rate statistics as a defendant. Therefore, after deduction, there are 82 judgments from Tencent as the defendant, which are listed as revised data. As shown in Table 1:
1.1 The definition of “winning a lawsuit”
The first theoretical challenge encountered in conducting empirical research around judicial documents is: how to define the outcome of the judgment? If there is no scientific and reasonable instrumental definition of "winning a lawsuit", it is impossible to conduct statistical analysis and theoretical analysis of the judgment results. For example, some media claim that "Tencent has a winning rate of 95% in Shenzhen and 54% in Beijing", and "from 2018 to 2020, Tencent's winning rate as a plaintiff in Nanshan District Court was 100%". Due to the lack of a definition for "winning a lawsuit", it is difficult to determine its authenticity and falsehood, which can easily lead to misleading information.
In previous research, the academic community has roughly summarized the following three defining methods: the first is the "appeal support method". This method can be subdivided into "quality" support and "quantity" support. Among them, "qualitative" appeal support refers to the fact that in the plaintiff's litigation request, at least one core appeal is supported by the court, which is considered as the plaintiff's victory. The "amount" of appeal support is the amount support ratio (Winratio), which refers to the ratio of "court judgment amount/plaintiff's request amount". The second is the "Appeal Judgment Law". The appellant will be considered as the winning party if either party files an appeal against the first instance judgment. If both parties have not appealed or both parties have filed an appeal, as long as the first instance court supports the plaintiff's partial claim amount, the plaintiff will be considered as the winning party. The third is the "Acceptance Fee Sharing Law". The plaintiff needs to prepay the case acceptance fee to the court when filing a lawsuit. If the plaintiff wins the lawsuit, the pre paid acceptance fee will be refunded, and the court determines that the defendant will bear the relevant costs. If the plaintiff loses the lawsuit, the pre paid acceptance fee will not be refunded. If the plaintiff partially wins and partially loses, the plaintiff shall bear the corresponding acceptance fee, and the defendant shall bear the rest. Therefore, most scholars measure the outcome based on the proportion of acceptance fees shared or the rate of acceptance fees borne by one party.
Each of the above definition methods has its own advantages and disadvantages. Firstly, the application support law for "quality" is intuitive and clear, but its scope of application is limited. Except for cases where the plaintiff submits a single claim, it is sometimes difficult to identify which are core claims and which are peripheral claims in multiple claims. In addition, most litigation requests are directed towards amounts or matters that can be converted into amounts, and in this regard, the "quantity" litigation support law is more universal. Secondly, the "quantity" litigation support method can provide more continuous and detailed analysis results, but people will have their own opinions on how much the support rate of the litigation amount exceeds to determine the plaintiff's victory. Some scholars believe that a support rate of over 50% for the amount of litigation can be considered as a complete victory for the plaintiff. 34% is the average support rate for the amount of litigation, 20% is relatively good for the plaintiff, and 10% may not be ideal for the plaintiff. Once again, whether the parties file an appeal directly reflects their satisfaction with the outcome of the lawsuit, which can be said to be a fairly reasonable subjective indicator. Unfortunately, due to the incomplete and incomplete online disclosure of the judicial documents, it is not possible to display the full picture of the parties' appeals. Finally, China adheres to the principle of the losing party bearing the case acceptance fee, and the sharing of the case acceptance fee can to a considerable extent present the winning or losing relationship between the plaintiff and the defendant. However, the sharing of acceptance fees mainly reflects the subjective judgment of the judge, and often considers other factors (such as the cumbersome procedures for refunding acceptance fees and the affordability of the plaintiff and defendant). To comprehensively evaluate the rationality and feasibility of the above methods, this article selects the support rate of litigation amount and the bearing rate of case acceptance fees as indicators to measure Tencent's victory rate.
1.2 Statistics and Analysis of "Victory Rate"
Let's take a look at the support rate for the appeal amount first. Among the 33 judgments made by Tencent as the plaintiff and 82 judgments made by Tencent as the defendant, the Nanshan Court's support rate for the plaintiff's claim amount is shown in Figure 1:
If the support rate for the litigation amount is greater than 20%, it is considered as the plaintiff's victory, then Tencent's victory rate as the plaintiff is 48.5% (16/33), and the victory rate as the defendant (i.e. the other party's support rate for the litigation amount is ≤ 20%) is 96.3% (79/82). If the support rate for the litigation amount is greater than 50%, it is considered as the plaintiff's victory, then Tencent's victory rate as the plaintiff is 18.2% (6/33), and the victory rate as the defendant (i.e. the other party's support rate for the litigation amount is ≤ 50%) is 100%. It can be seen from this that Tencent, as the defendant, has a very high winning rate, and its performance as the plaintiff is difficult to be known as "必胜客".
It should be noted that this result is confusing. On the one hand, an important reason why Tencent can continuously and effectively block the plaintiff's litigation requests is that the samples are all small subject matter lawsuits filed by natural persons and small and medium-sized enterprises as plaintiffs against Tencent. According to statistics, out of the 82 Tencent defendant samples, more than half of the appeal amounts are below 50000 yuan, and none of them exceed 500000 yuan. Further review reveals that the vast majority of cases involve plaintiffs requesting Tencent to assume platform regulatory responsibilities, lifting banned user accounts, returning stolen game equipment, and returning minors for consumption recharge. For Tencent, dealing with such trivial and simple cases can be said to be effortless. On the other hand, Tencent, as the plaintiff, has a low support rate for the amount of litigation, resulting in a significantly lower success rate than expected, and it is not entirely unfounded. According to statistics, out of the 33 samples of Tencent as the plaintiff, more than half of the claims amount to over 1 million yuan, with two cases exceeding 10 million yuan. The defendants in these cases are mostly natural persons and small and medium-sized enterprises. The main causes of the cases are infringement of trademark rights, Unfair competition and infringement of the right of information network dissemination. Intellectual property cases are influenced by factors such as the large amount of litigation and the lack of objective calculation methods for losses, which often result in the court deciding on the compensation amount. The support rate for the amount of litigation is generally not high. Even so, when facing corporate rather than natural person defendants, Tencent still received nearly 100% of the appeal amount in multiple judgments such as "(2019) Yue 0305 Min Chu 5496", "(2019) Yue 0305 Min Chu 12767", "(2019) Yue 0305 Min Chu 618", and "(2019) Yue 0305 Min Chu 7107".
Let's take a look at the case acceptance fee bearing rate. Among all samples, Tencent's commitment rate to case acceptance fees is shown in Figure 2:
Based on empirical research, some scholars have concluded that the defendant's assumption of more than 80% of the case acceptance fee can be considered as a comprehensive victory for the plaintiff, the defendant's assumption of 50-80% can be considered as a partial victory for the plaintiff, and the defendant's assumption of less than 50% can be considered as a victory for the defendant. Based on this standard, Tencent's overall victory rate as the plaintiff (i.e. bearing case acceptance fees ≤ 20%) is 66.7% (22/33), while the partial victory rate (i.e. bearing case acceptance fees between 20% and 50%) is 24.2% (8/33), with a total of 90.9%. When Tencent was the defendant, the overall success rate of the plaintiff (i.e. Tencent bearing case acceptance fees>80%) was 34.1% (28/82), and the partial success rate (i.e. Tencent bearing case acceptance fees between 50% and 80%) was 1.2% (1/82), with a total of 35.3%. In other words, Tencent's success rate as a defendant is 64.7%.
From this, it can be seen that Tencent's victory rate as the plaintiff is significantly better than its victory rate as the defendant, with the case acceptance fee bearing rate as the indicator. This is exactly the opposite of the statistical results using the support rate of the appeal amount as an indicator. In summary, when Tencent was the plaintiff, although the support rate for the amount of the lawsuit was not very high, it bore relatively less case acceptance fees; When Tencent was the defendant, although the support rate for the plaintiff's application amount decreased to a lower level, it undertook more case acceptance fees. Obviously, using a single indicator is difficult to conclude that Tencent has a high success rate as both the plaintiff and the defendant.
1.3 Statistics and analysis of mean and standard deviation
Based on the statistics of the support rate of the sample's appeal amount and the rate of bearing the case acceptance fee, Tencent's victory rate is calculated according to certain standards. This analysis reflects the induction of sample features, but does not reflect the characteristics of the sample set and the interrelationships between samples. In order to make up for this deficiency, the following indicators are still used to calculate the arithmetic mean and standard deviation of the sample based on the support rate of the appeal amount and the bearing rate of the case acceptance fee. Arithmetic average (mean) is the quantity of Central tendency of data, which is the result of dividing the sum of all data in a group by the number of data. The standard deviation measures the Statistical dispersion of sample data, reflecting the distance between individual data and the average value and the fluctuation degree of overall data around the average value. The statistical results of the samples are shown in Table 2:
1.3.1 Support rate for litigation amount
Firstly, in the sample of Tencent as the plaintiff, the average support rate for the amount of the lawsuit reached 30.36%. This is close to the average of 34% mentioned by previous scholars. It can be seen that Tencent, as the plaintiff, has a clear advantage over the defendant as a whole. In particular, among the nine samples in 2019, the average support rate of the amount of appeal is as high as 54.23%, which seems that "南山必胜客" deserves its name. However, the arithmetic mean is easily influenced by extreme data. In the 2019 sample, there happened to be multiple samples of large-scale litigation requests with enterprises as defendants, which were almost 100% supported by the Nanshan Court. The standard deviation of the support rate for the amount of litigation in 2019 was also as high as 44.13%. This indicates that the samples have high dispersion and lack sufficient commonality with each other. On the contrary, in the eight samples in 2020, the average support rate for the amount of litigation was only 10.10%, while the standard deviation was 15.57%. This indicates that the judgment of Nanshan Court is relatively stable and does not meet the majority of Tencent's litigation amount. The standard deviation of the support rate for litigation amounts over the past three years exceeds 30%, indicating that it is common for the support rate for litigation amounts to fluctuate. Overall, it is difficult to conclude from this set of data that Tencent, as the plaintiff, has received sustained, normalized bias or attention from the Nanshan Court.
Secondly, in the sample of Tencent as the defendant, the average support rate for the plaintiff's application amount was 1.77%, and after further correction, it was only 5.97%. Among them, in 2018, the average was even as low as 0.7%, and the standard deviation was as low as 4.89%. After further correction, it was still only 7.44%. This means that the plaintiff suing Tencent for monetary payment can only receive an average support rate of around 6% for the amount of the lawsuit. This is in stark contrast to Tencent's support rate for the amount of litigation (over 30%) as the plaintiff, and Tencent's performance as the defendant is more stable. It can be said that it is indeed quite difficult for small and medium-sized enterprises and natural persons from other regions to obtain a successful judgment on monetary compensation in the Nanshan Court.
1.3.2 Case acceptance fee bearing rate
Firstly, in the sample of Tencent as the plaintiff, Tencent only bears an average of 18.77% of the case acceptance fee, which can be considered a complete victory. From different years, the support rate for the amount of litigation in 2019 exceeded half (54.23%), and more than a quarter (25.34%) of the case acceptance fees were borne. In 2018, the support rate for litigation amounts was only one quarter (27.07%), while the burden of case acceptance fees was only 2.73%. In 2020, the support rate for the amount of litigation further decreased to one tenth (10.10%), and the burden of case acceptance fees actually jumped to 43.43%, indicating that there is no positive correlation between these two indicators. At the same time, not only is the standard deviation of the support rate for the amount of the appeal large, but the standard deviation of the case acceptance fee bearing rate is also large (30.51%).
Secondly, in the sample of Tencent as the defendant, Tencent only bears an average of 10.40% of the case acceptance fee, which has been revised again and increased to 33.78%. From different years, the support rate for the plaintiff's application amount in 2019 was 5.77%, and Tencent, as the defendant, borne 23.09% of the case acceptance fee; In 2020, the support rate for the plaintiff's application amount decreased to 2.92%, indicating that Tencent's performance as a defendant was even better. However, the acceptance fee bearing rate actually increased to 37.50%. At the same time, although Tencent's response performance as a defendant can be considered excellent, the standard deviation of case acceptance fees is not low, with a revised 30.40% and a revised 47.02%. It can be seen that although the Nanshan Court has a low support rate for the original application amount in most cases, it often requires Tencent, as the defendant, to bear a larger proportion of the case acceptance fees.
2 Viewing the Phenomenon of "南山必胜客" from Key Cases
Obviously, the quantitative research mentioned above has limitations: except for the limited sample size that cannot be used for regression analysis, the most important thing is that all samples are sourced from the Chinese Judgment Document Network, not randomly selected, and the relationship with the "parent group" of disputes and litigation in the real world is unclear, making it difficult to make effective statistical inferences. Regardless of whether a large number of disputes are resolved through non litigation methods such as forbearance, reconciliation, mediation, or arbitration, a large number of disputes evolve into lawsuits and then stop on the way due to reasons such as withdrawal and mediation. Even if many lawsuits ultimately form judgments, they are not publicly available online for various reasons. One obvious evidence is that all samples are simple, ordinary, or even trivial cases, and there are few decisions that have demonstrative significance, have received widespread attention, and may have a significant impact on judicial trials. This is in stark contrast to the many popular cases related to Tencent reported by the media. As a hypothesis, the above statistical samples are irrelevant to Tencent and not worth losing their image and dignity. In other words, capital is likely to "capture" local justice through a relatively covert rather than crude approach, such as obtaining favoritism in key cases, which not only preserves "face" but also does not lose "confidence". Therefore, selecting controversial and influential cases from public media outside the Judgment Document Network for "extended case" research can effectively supplement the shortcomings of the quantitative analysis mentioned above.
The goal of case studies is not to summarize statistics, nor to pursue 'generalizations beyond individual cases'. This is because individual samples are not generated by sampling and cannot infer the whole from the samples. But under the extended case methodology, the significance of a case lies not in the relationship between the case and the whole, nor in the typicality and representativeness of the sample, but in its auxiliary theoretical construction power. In other words, based on the macro theoretical presupposition and vision, the researchers select cases with theoretical relevance, test and revise the theory through case analysis, cycle between micro and macro, and then propose new theoretical ideas. Therefore, the abstraction in extended case studies is not probability sampling, but rather theoretical sampling.
Under the guidance of this methodology, this article selects a set of samples for comparison, namely the Beijing Internet Court's "(2019) Jing 0491 Min Chu No. 16142" judgment and the Nanshan Court's "(2020) Yue 0305 Min Chu No. 825" judgment. The former is referred to as the "WeChat Reading Case" by the media due to its involvement in the WeChat Reading App; The latter involves micro vision apps, which we may refer to as the "micro vision case". These two cases are both related to the dispute over Tencent's cross product use of WeChat user data information, including its methods, scope, and limitations. As is well known, data is a new type of production factor with great potential. On April 9, 2020, the Central Committee of the Communist Party of China and the State Council issued the Opinions on Building a More Perfect Factor market based Allocation System and Mechanism, which requires "accelerating the cultivation of data factors", and juxtaposes data, land, labor, capital, technology and other traditional production factors as one of the national basic strategic resources and social production innovation factors. For top internet companies like Tencent, data can be said to be the foundation for survival. Starting from the aforementioned theoretical assumptions, if capital has already "captured" local justice, then Tencent has a strong motivation to intervene in such cases and gain the favor of Nanshan Court beyond the law. In fact, the media also compared the two judgments, using the judgment of the "WeChat Reading Case" to contrast the unfairness of the "Micro Vision Case" judgment.
This article compares these two judgments and is not an arbitrary move. On the one hand, the two cases have many commonalities, including but not limited to: firstly, both are individual users suing Tencent; Secondly, the causes of the case are all disputes over network infringement liability; Thirdly, the plaintiffs all claimed that Tencent used its WeChat friend relationship with other Tencent software without its explicit authorization, infringing on its privacy and personal information rights. On the other hand, on the surface, the verdict results of the two cases are completely opposite. In the "WeChat Reading Case", the Beijing Internet Court ruled that Tencent stopped the collection and use of the plaintiff's WeChat friend list by the WeChat Reading App, deleted relevant list information, removed mutual attention between the plaintiff and WeChat friends, stopped displaying the plaintiff's reading information to WeChat friends, and also required a written apology to the plaintiff. In the "Micro Vision Case", the Nanshan Court ruled to dismiss all the plaintiff's claims. Due to the fact that the Nanshan Court only made a first instance judgment on the "Weishi Case" after the "WeChat Reading Case", if the two constitute the same case but different judgments, it can indicate that the Nanshan Court has biased Tencent in key cases. In short, "南山必胜客" in the sense of judicial local protectionism is not groundless.
As a control sample, let's first interpret the reasons for the judgment of the "WeChat Reading Case". The judge in this case introduced a "scenario based model" analysis approach within the framework of personal information layering, without being limited to the strong expectations of the parties for personal information privacy. In other words, they adopted a relatively objective rather than subjective stance. Firstly, the ruling acknowledges that WeChat friend relationships belong to personal information and categorizes them as a third type of information that is neither private nor general, namely "personal information that combines defensive expectations and active utilization expectations". Whether the processing of such information is infringing or not needs to be judged based on the information content, processing scenarios, processing methods, etc., in accordance with the general reasonable understanding of society. After analysis, the Beijing Internet Court found that "based solely on the way WeChat Reading collected information on the plaintiff's friend list in this case, Tencent does not violate legal regulations. In fact, Tencent has since improved the above method of obtaining user authorization and has chosen to optimize the user experience under the influence of the market, which is affirmed by the court. Secondly, the court believes that "under general social cognition, it can be determined that the social relationships of information subjects bear reasonable privacy expectations in the following situations: firstly, the relationship between information subjects and specific individuals is relatively private and unwilling to be known to others; secondly, a certain amount of public social relationships of information subjects may be subject to improper evaluation of their personality by others and unwilling to be known to others"; However, the friend list obtained through WeChat reading is essentially a 'contact list', which does not reflect the true relationship between specific contacts or some contacts and the plaintiff, and has not yet reached a level of privacy. Although the expression of the verdict may seem somewhat convoluted, the meaning is clear: the WeChat friend relationship in this case does not have privacy expectations and is not protected by privacy rights.
The media placed the "WeChat Reading Case" on the opposite side of the "Micro Vision Case", which is likely due to a misinterpretation or misunderstanding caused by not reading the original judgment or clarifying the reasoning logic of the judgment, and extrapolating the conclusion backwards. The reason why the Beijing Internet Court ruled that Tencent lost the lawsuit is not because Tencent violated the plaintiff's privacy right regarding WeChat friend relationships, But rather, I believe that reading information To a certain extent, it can showcase a person's interests, hobbies, aesthetic taste, cultural cultivation, and may outline a person's personality profile, and these combinations of information about people's spiritual world are the foundation of a large amount of social evaluation. Once certain specific or temporary reading information or habits can form a characterization of personality, it may bring attention, affirmation, appreciation, or trouble to people Anxiety, embarrassment, and even a sense of shame. In this digital age where almost all life trajectories are recorded and depicted, users should have the freedom to independently establish information 'personas' by managing personal information, as well as the freedom to refuse to establish information' personas'. The premise for this freedom to exercise is that users are clearly and clearly aware of this freedom.
At the same time, Tencent did not disclose its reading information to the plaintiff's WeChat friends who used the WeChat Reading App without reasonable "transparency" and obtaining the plaintiff's consent, which violated the legal regulations on handling personal information and infringed on the plaintiff's personal information rights. At the same time, the court held that "the comprehensive disclosure of all information by the plaintiff is not sufficient to portray the plaintiff's personality through reading these two books, which may cause harm to their personal interests." The plaintiff's reading information did not meet the standard of privacy, thereby denying the plaintiff's privacy infringement claim. In summary, Tencent lost the lawsuit because without the plaintiff's informed consent, it automatically disclosed its reading information to users of the WeChat Reading App among its WeChat friends, infringing on the plaintiff's personal information rights.
Furthermore, let's review the reasons for the verdict in the "Micro Vision Case". Firstly, the Nanshan Court, based on two reasons, determined that the Micro Vision App did not infringe on the plaintiff's privacy rights. On the one hand, the plaintiff's claimed WeChat friend relationship has reasonable privacy expectations in specific circumstances, but from the situation identified in this case, the plaintiff's claimed WeChat friend relationship neither includes private relationships that they do not want to be known to others, nor can others make judgments about their personality through their WeChat friend relationship, resulting in negative or inappropriate evaluations. Therefore, the plaintiff's WeChat friend relationship in this case does not belong to the plaintiff's privacy. On the other hand, the plaintiff had authorized the WeChat app to use their WeChat friend relationship during their initial login, and could revoke the software's use of WeChat friend relationships in the WeChat app and the upgraded version of the WeChat app. From the way the Micro Vision App collects and uses the above information, combined with the situation identified in this case, the use of the above information by the software will not cause illegal interference with the plaintiff's private life and peace. Secondly, the Nanshan Court recognizes that WeChat friendship belongs to the plaintiff's personal information, but does not recognize it as sensitive information. Sensitive information is Information closely related to the peace and tranquility of personal life is personal information that, once leaked or modified, will have a negative impact on the identified personal information subject. At the same time, the Nanshan Court believes that Tencent's collection and use activities comply with the principles of necessity, legality, and legitimacy, and have protected users' rights to know, choose, and delete. Therefore, it does not support Tencent's claim of infringing on the plaintiff's personal information rights. Finally, the Nanshan Court found that the plaintiff's relevant litigation request had no factual or legal basis, and the judgment was rejected.
It is not difficult to see that in terms of the WeChat friendship relationships of users in other apps under Tencent, although the two judgments have opposite reasoning ideas (the "WeChat Reading Case" first analyzes personal information and then analyzes privacy rights, and the "Micro Vision Case" switches the order), both the analysis approach, basis, reason, and conclusion are similar. Firstly, although the concept of "scenario based mode" is not explicitly used in the "micro vision case", it also combines information content, processing scenarios, processing methods, etc. to make judgments that are in line with the general reasonable cognition of society. Although the "WeChat Reading Case" has a lot of theoretical analysis and legal implications, in terms of case judgments, especially first instance judgments made by grassroots courts, it is neither necessary nor easily controversial. Second, although they were made before and after the Civil Code of the Civil Code of the People's Republic of China came into force, they both cited the provisions of the Civil Code of the Civil Code of the People's Republic of China on privacy and personal information rights and interests when making judgments. Both have also quoted relevant provisions of the Network Security Law of the Cybersecurity Law of the People's Republic of China. Thirdly, both believe that the WeChat friend relationships in their respective scenarios do not have reasonable privacy expectations, that is, they do not include social relationships that are unwilling to be known to others, and their disclosure will not subject users to derogatory personal interests. Fourthly, in terms of conclusion, there is a distinction between indirect and direct expressions, but both recognize that the WeChat friend relationship in their respective scenarios is not personal privacy and does not constitute the object of privacy rights, but rather belongs to the user's personal information.
As for the opposite verdict between the two, it is mainly because the two courts have different understandings of the functional positioning of the two apps and the impact of using WeChat friendship on users. Firstly, the judge of the "WeChat Reading Case" believes that the WeChat Reading App "as a reading application, its obvious function that can be understood by users is reading", without emphasizing its social function. The judge in the "Micro Vision Case" believes that "Micro Vision App is a short video social media app", and social interaction occurs between different individuals. WeChat friends are interpersonal relationships based on reality and online social interaction. Tencent's cross product use of WeChat friend relationships may have varying levels of usage standards depending on the functional attributes of the product. Secondly, disclosing user usage information to their WeChat friends on different apps can have different consequences for user profiling. The judge of the "WeChat Reading Case" believes that certain specific or long-term reading information or habits may bring positive or negative evaluations to the user's personality, so users have the right to self-determination over these information. Tencent should clearly and clearly inform users that they have the freedom to choose whether to establish or not to establish an information-based "persona". In contrast, the judges in the "Micro Vision case" did not analyze the user's right to information self-determination, which is somewhat lacking. However, the implicit meaning should be that since users choose to use a short video social software, they naturally have a reasonable understanding and expectation of its social function attributes. Disclosing short videos posted, liked, and followed by users to users' WeChat friends is an extension of online social interaction and will not cause serious damage to user profiles. There is no need to provide additional protection for users' information self-determination rights. In addition, the upgraded Micro Vision App provides better protection for users' rights to know, choose, and delete. Therefore, the judgment in the "Micro Vision Case" determined that Tencent did not infringe on users' personal information rights.
In summary, in the basic fact that Tencent uses WeChat friendship relationships across products, there is no substantial difference in the legal views of the two judgments, both of which believe that WeChat friendship relationships do not belong to personal privacy, nor do they belong to private or sensitive personal information. The different verdict results of the two apps are mainly due to the court's belief that the functional positioning of the two apps is different, and the user profile impact brought to the plaintiff by disclosing usage information to WeChat friends using the app is different. In other words, there is a substantial difference in this main fact (adjunct or material facts). In this regard, the two cannot be included in a unified legal rule and do not constitute a joint case, therefore there is no need for a joint judgment. Although the issue of whether WeChat friend relationships belong to users' personal privacy or sensitive information, and whether the impact of short video messages on user profiles can be ignored, is worth further exploration in theory, the reasons for the judgment of the "Micro Vision case" can be roughly justified and there is no obvious injustice. By conducting an extended analysis and comparison of the two judgments, it cannot be concluded that the Nanshan Court favored the protection of Tencent in key cases.
3 Theoretical Explanation of Tencent's High Victory Rate in Litigation
Based on the above quantitative and qualitative analysis, this article finds that on the one hand, whether as a plaintiff or a defendant, Tencent has performed well in Nanshan Court, achieving an expected high success rate in litigation. On the other hand, whether it is the support rate for the litigation amount or the bearing rate of case acceptance fees, Tencent has not received a sustained and stable preference from Nanshan Court. Even if it is difficult for non local enterprises and natural persons to obtain a higher support rate for Tencent's litigation amount in Nanshan Court, Nanshan Court often judges Tencent to bear a larger proportion of case acceptance fees. In the expanded analysis of key cases, no clear evidence of "capital capture" judicial protectionism was found. In this sense, "南山必胜客" is not worthy of its name.
However, it must be acknowledged that Tencent has achieved the goal of suing or responding in most cases, achieving a high success rate. If it weren't for capital capturing local justice, how could this phenomenon be explained? The theoretical framework of "rare court guests/frequent court guests" proposed by American scholar Marc Galanter has strong explanatory power. Professor Grant proposed the famous hypothesis in an article published in 1974 that the party with resources is more likely to win. He distinguished the parties into two types: "rare court guests" and "frequent court guests". Among them, "rare court guests" refer to parties who occasionally engage in litigation, and "frequent court guests" refer to parties who are constantly involved in similar lawsuits. As a Ideal type concept, "regular court visitors" do not care much about the gains and losses of individual cases, but rather pay more attention to long-term strategic interests, and have resources to pursue long-term interests. It goes without saying that "frequent customers of the court" are generally large enterprises, social organizations, or government agencies, with strong capital (to purchase better legal services), a large scale (to lower the cost of a single lawsuit), and the experience accumulated and strategies formed in repeated lawsuits (to have a more accurate judgment of whether a lawsuit can be won). They also establish long-term trust and mutually beneficial informal relationships with the judicial authorities. Therefore, "frequent court guests" are not only more likely to win in individual cases, but can also intervene in the formation of public legal order and the development of legal rules, affecting the outcome of similar lawsuits in the future. Not only that, "court regulars" also internalize rules or legal elements through methods such as compliance review. In summary, Professor Grant has revealed a cold reality: even if judicial power is exercised independently, procedures are legitimate, and judges are competent, it cannot prevent the party with resources from achieving higher success rates. After the proposal of this hypothesis, it has attracted widespread attention in the United States and even the world, and has been confirmed to varying degrees in countries such as the United Kingdom, South Africa, India, and Taiwan, China. The empirical research conducted by domestic scholars in Shanghai courts also partially supports this theoretical hypothesis.
Returning to the analysis sample in this article, whether it is quantitative or qualitative analysis, Tencent faces natural persons and small and medium-sized enterprises in Nanshan Court without exception, and the litigation capabilities or resources that affect the litigation results of both parties are significantly unequal. For example, if a wealthy team sits at home and wins consecutive games against middle and lower level teams, if the referee is not found to have engaged in favoritism, favoritism, or protective behavior, the reason may be due to their strong strength and the gap between the two sides. Tencent perfectly matches the concept of "frequent court guests" and has unparalleled litigation capabilities compared to other parties.
Firstly, in order to effectively prevent and control legal risks, Tencent has established a large team of legal personnel, with a current number of up to 4500 people, most of whom are stationed in the "front line" of platform and product development, while the team responsible for litigation affairs exceeds 40 people. On the one hand, in the various agreements provided to users, Tencent legal personnel carefully formulate format clauses to reduce or exclude their own legal responsibilities and risks, and embed agreement jurisdiction clauses (without exception pointing to Nanshan Court), thereby obtaining a pre legal advantage position. On the other hand, by searching the China Judgment Documents Network, it can be seen that from 2018 to 2020, there were over 4000 judgment documents related to Tencent companies each year, with a maximum of nearly 6000 in a year. From this exposed "tip of the iceberg", coupled with unpublished judgment documents and litigation that has not yet formed a judgment document (settled through mediation and other means), Tencent participates in tens of thousands of lawsuits in courts across the country every year. Obviously, Tencent is one of the most frequent users and customers of the court. For such a large litigation volume, the litigation team is responsible for "leading the progress of all major litigation cases, especially influential, important, and new types of cases", while other lawsuits are handled by external lawyers. According to the head of Tencent's legal department, this is because "due to the unique nature of internet company products, external lawyers have much less understanding of the products than internal lawyers. Whether it is an attack or defense, it is untenable to discuss opinions and legal relationships outside of the product itself".
In Tencent's legal department, many former judges can be seen. The most typical example is Jiang Bo, the former head of Tencent's legal department and now Tencent's vice president of legal affairs. Before joining Tencent in 2011, he served as the President of the Intellectual Property Division of Nanshan Court; Jiang Hongming, a post judge of the People's Court of Shushan District, Hefei, who became popular on the Internet with the "Civil Judgment of First Instance on Medical Service Contract Dispute between Ding, Li, etc. and the Fourth People's Hospital of Hefei", joined Tencent Research Institute after leaving his post, and currently serves as the senior project manager of Tencent Smart Court and the project leader of Tencent Micro Court. This phenomenon has attracted public attention and criticism. However, in the current job market, it is a normal flow of talents and a reasonable choice for judges to join Megacorporation as legal officers after leaving their posts. Interpreting it as Tencent recruiting judicial personnel to influence and intervene in the fair administration of justice by local courts has no conclusive basis. The "network" of departing judges within their original unit or system is a resource that is difficult to verify or falsify, and even if there is one, it cannot be overestimated. For example, in an interview with Tencent's legal head in Beijing, the author admitted that he has been away from the court for over a decade, and due to factors such as rapid personnel turnover and internal job rotation, there are not many former colleagues who have stayed in the original trial court. Under the current trial management and judicial responsibility system, judges are also very cautious and will not take personal career prospects for personal gain or friendship.
Of course, Tencent has added weight to winning the lawsuit by recruiting departing judges to engage in legal risk prevention and litigation affairs. First of all, before leaving office, judges or Law clerk have handled at least more than 1000 cases (based on an annual average of 300 or 400 cases, calculated over five years). In addition to participating in internal training and exchanges, they have mastered the laws and judicial interpretations in a certain field, and have a full understanding of meeting minutes, normative documents, guidance cases, bulletin cases, the Supreme People's Court and typical cases in the province and city. Secondly, these personnel are familiar with the judge's case handling approach and the court's trial process, possess professional experience, judgment, and insight, and accumulate invisible knowledge that only "insiders" possess. For example, after joining Tencent, Jiang Bo participated in and led two famous "3Q wars" and achieved complete victory. Both cases were tried by the High people's court of Guangdong Province in the first instance and the Supreme People's Court in the second instance, which basically transcended the "network" boundary of a chief judge of a basic court. Rather, as a senior judge in handling intellectual property cases, Jiang Bo has transformed his rich trial experience into litigation strategies, "grasping the overall situation from a higher perspective, eliminating complex and disorderly information and interference, and hitting the other party's crucial point in one go.
In addition, external lawyers are equally important. Experienced lawyers will provide evidence that is easily accepted by the court, better meeting the information needs of the court, thereby affecting the judge's judgment and decision-making, and increasing the probability of the parties winning the case. Related studies have found a statistically significant positive correlation between lawyers' litigation experience, litigation team size, and court decisions. In the fields of internet intellectual property and market competition, litigation often has a high degree of professionalism and technicality, and the number of experienced lawyers is relatively limited. In a sense, it can be said that whoever controls this portion of lawyer resources is close to a favorable litigation outcome. Tencent not only has the strength to obtain high-quality lawyer resources, but also uses capital to limit the supply of high-quality lawyer resources. A well-known lawyer in the field of intellectual property said in an interview that Tencent will sign perennial legal advisory agreements with many law firms across the country and use the "conflict of interest" rule to restrict lawyers from accepting clients from the other party. Tencent may allow multiple law firms to "share the rain and dew" in its litigation agency business, or it may idle it under the name of "perennial legal advisor". Ultimately, Tencent's resource endowments were transformed into strong litigation capabilities.
Secondly, Tencent is not only more likely to win a lawsuit, but also has a subtle impact on the formation of internet intellectual property protection rules, service contract rules, market competition rules, etc. Unlike the United States, China is not a case law country. Neither the judgment of the Supreme People's Court nor the judgment of the High people's court has the legal effect of compulsory application to the lower courts. Even if the judgment is selected and determined by the Judicial Committee of the Supreme People's Court as a guiding case, it only has ambiguous "reference" effect. When people's courts at all levels try similar cases, guiding cases should be cited as reasons for judgment, but not as a basis for judgment. Therefore, Tencent could not win the lawsuit in the Supreme People's Court or the High people's court, and directly involved in the formation of legal rules in relevant fields, transforming the results of private litigation into public legal order. However, Tencent has strategic resources and capabilities to influence and achieve long-term benefits, and can take comprehensive action.
Tencent's "big legal" system can be divided into different departments such as the Legal Comprehensive Department, Legal Platform Department, Intellectual Property Department, Compliance Trading Department, and Tencent Research Institute. Tencent established China's first Internet Research Institute in 2007, initially dedicated to practical technology research, and gradually transformed into a social science research institution. At present, Tencent Research Institute has legal research center, industrial and economic research center, social research center, crime research center, security research center, patent and innovation research center, "Internet plus" innovation center and other institutions, as well as post doctoral research workstation. On the research institute website, the introduction to legal research is "Tencent Research Institute focuses on the opportunities and challenges brought by new technology and culture to global economic and social governance, active at the forefront of global network governance research", covering various related fields such as platform governance, intellectual property, data privacy, competition policy, and cybersecurity, content regulation, and artificial intelligence law. It is said that in April 2021, Tencent upgraded its strategy to include "promoting sustainable social value innovation" in its core strategy, with an initial investment of 50 billion yuan to promote social value innovation in basic science, educational innovation, rural revitalization, FEW (food, energy and water), public emergency, elderly care technology, and public welfare digitization. Recently released research reports include "2021 Blackmail Attack White Paper: Characteristics, Trends, and Solutions", "China Network Copyright Industry Development Report (2020)", "2021 Public Welfare Digitalization Research Report", and "Future Education Technology Space Research Report". The latest published legal research articles include "How does the new digital environment affect the lives of the elderly?" "Discussion on the legal nature of online live streaming rewards", "What to do with online heritage after death?" "Consensus gathering in the big discussion of data ownership", "From the protection of minors online to the development of teenagers in the digital age", and so on. The dissemination of these research findings and viewpoints on cutting-edge issues on the Internet will undoubtedly have a direct or indirect impact on legislation and justice.
Starting from at least 2011, Tencent has been investing in the establishment of the "Internet Legal Research Support Program", which regularly launches research topics around cutting-edge and hot topics in the internet industry, funding universities, research institutions, legal service institutions, and industry insiders to conduct research, and sharing Tencent's accumulated cases, materials, and viewpoints over the years. Tencent also hosts and co hosts various internet legal forums and salons, maintains long-term cooperation with many famous law schools and research institutions in China, and sponsors the publication of publications such as "Online Law Series". Using this as a medium, judges may receive hidden benefits such as attendance compensation, paper awards, and typical case submissions. These behaviors do not violate the prohibitive provisions of the law and are difficult to classify as corruption. Although there is a Pay-to-play that is difficult to verify or falsify, more importantly, this communication has formed a blend of industry and academia, law and technology. Tencent's participation and expression of industry rules are certainly based on its own perspective and have distinct interests. However, objectively, it has also lowered the industry threshold, broken down industry barriers, and enabled legal practitioners such as scholars and judges to keep up with the pace of technological development. It conducts research around cutting-edge and difficult legal issues in the internet field, and promotes the development of industry governance rules. Correspondingly, judges are more likely to adopt similar positions and viewpoints when adjudicating such cases.
This is not a big surprise. Most cutting-edge technologies in human history have gone through four stages: innovation, commercialization, creative chaos, and rulemaking. Tencent was founded at the end of 1998, which was the eve of the commercialization of the domestic internet. Since the launch of OICQ, an instant messaging tool suspected of infringement, in 1999, Tencent has been criticized for plagiarism and counterfeiting for a long time. After fighting with competitors (such as the "3Q War") and being harassed by "looters", Tencent has crossed the creative Time of Troubles and gradually grown into one of the giants in the Internet industry. At present, Tencent has an annual operating revenue of more than 400 billion yuan. Its business areas cover communication and social networking, online games, digital content, financial technology, Online advertising, Cloud storage and other enterprise services. The number of patent applications ranks second among global Internet enterprises, and is far ahead of Chinese Internet enterprises. In order to reduce transaction costs, maintain market position and economic interests, Tencent has begun to adjust its strategy and seek the discourse power to formulate rules. For example, the outbreak and tragic victory of the "3Q War" triggered the reflection of Tencent's decision-making layer, and started to focus on building and promoting the Open platform strategy, so that more potential competitors can share and benefit from the platform. By April 2015, the number of connected applications had exceeded 4 million, and partner dividends had exceeded 10 billion. It can be seen that Tencent's attempt to influence the formation of legal rules in the internet field is driven by both economic interests and objective laws of the industry's development stage.
In contrast, Tencent faces both natural persons and small and medium-sized enterprises as the opposing parties. Of course, if viewed from the absolute number of lawsuits involved, not all counterparties are occasional "court guests" who deal with the court. For example, during the period from 2018 to 2020, there were over 23400 civil judgment documents publicly available online involving the aforementioned Panorama company, even exceeding the total number of judgment documents involving Tencent related companies. However, Panorama belongs to the renowned "copyright troll". Its strategy is to first purchase the copyright or exclusive right to use a massive amount of images at an extremely low price, and then let anyone download and use them online, and then claim compensation from the infringer afterwards. Each lawsuit is filed at a price standard of several thousand to ten thousand yuan per image, with the goal of "spreading the net widely and fishing more", pursuing the volume of litigation without considering the gains and losses of individual cases. For the "copyright cockroach", there has been a fixed routine from pre ambush, evidence preservation, agency appointment to litigation requests and factual reasons. They lack interest in pursuing long-term interests and have no intention of changing the rules of copyright protection through a large number of lawsuits. On the contrary, a large number of infringements and lawsuits are the result of their intentional actions, in line with their business purpose of making a living through claims. Therefore, it is difficult for the "copyright cockroach" to be included in Professor Grant's concept of "court regulars". In addition, companies such as Panorama Company have listed Tencent as a co defendant, mainly treating it as a "tool person", and their litigation and defense will be briefly discussed. Tencent can easily handle it with the help of the "notification delete" rule, and has not lost a single lawsuit. As for other parties, whether it is their understanding of industry rules, their ability to purchase legal services, or their ability to collect preservation evidence and implement litigation strategies, they are completely different from Tencent.
In summary, in the party structure of "frequent court guests/rare court guests", Tencent's high victory rate is neither surprising nor reasonable. On the one hand, Tencent has transformed its advantageous market position into a dominant legal position through arrangements such as format agreements. In litigation, Tencent transforms its advantageous legal position into an advantageous litigation position through a more experienced legal team and the representation of external lawyers. On the other hand, Tencent has transformed into a giant in the industry after experiencing the creative chaos stage. It has the demand and ambition to shape the rules of Internet intellectual property protection, market competition, property rights and Personality rights protection, and improve its influence and voice by expanding capital investment. Judges are more likely to adopt viewpoints that are in line with Tencent's interests on innovative, significant, and industry policy related legal issues. Of course, in the contemporary context of our country, case judgments should not conflict with national macroeconomic industrial policies. In general, industry regulatory authorities will seek opinions and suggestions from industry leaders such as Tencent when formulating relevant industrial policies. Therefore, in most cases, industrial policies are consistent with Tencent's interests. However, when policies such as breaking industry monopolies and supporting the development of small and medium-sized enterprises dominate, this will also subtly affect the judge's judgment stance. At this point, Tencent's resources may also be difficult to prevent its failure in major cases. This is the limitation of applying the theoretical framework of "frequent court guests/rare court guests" in the Chinese context.
The quantitative research in this article found that Tencent's victory rate in Nanshan Court is relatively high, but it is not as exaggerated as the media portrays. According to the definition of "winning a lawsuit" in this article, with the support rate of the amount of the lawsuit as the measurement indicator, Tencent's case winning rate as the plaintiff is 48.5%, and the case winning rate as the defendant is 96.3%; Using the case acceptance fee bearing rate as a measurement indicator, Tencent's case success rate as the plaintiff is 90.9%, and the case success rate as the defendant is 64.7%. It can be seen that there is a significant difference in the case success rate between Tencent as the plaintiff and Tencent as the defendant, and using different indicators will result in opposite statistical results. At the same time, the dispersion of the statistical samples is significant, and the annual differences are also significant, reflecting Tencent's lack of sustained and stable high victory rate performance in Nanshan Court. Therefore, calling Tencent "南山必胜客" is overstated. And the expanded analysis around key cases also did not find any obvious evidence of Nanshan Court favoring Tencent compared to other local courts. In this regard, there is no reason to believe that capital has "captured" local justice, forming a "capital capture" type of judicial local protectionism. The impartiality of China region's local courts is basically trustworthy, and a series of judicial reform measures have achieved positive results, guiding the development of civil justice in a better rather than a worse direction. For the purpose of commercial competition and other purposes, the hype of "南山必胜客" and similar phenomena, which further stigmatize the local court, can stop.
Tencent has a high winning rate in Nanshan Court, mainly influenced by two factors. One is the regional jurisdiction and agreement jurisdiction system, which has attracted more attention as a large number of Tencent related lawsuits have gathered in Nanshan Court. Another issue is that Tencent's litigation in the Nanshan Court is basically a "frequent court guest vs. rare court guest". As a party with more resources and stronger litigation ability, Tencent is more likely to win, winning most lawsuits and winning in key cases. Tencent not only transforms its resource endowment into litigation capability by forming a strong legal team and hiring excellent lawyer teams, but also strategically invests resources into the formation process of legal rules and order in the internet field.
However, the modern litigation model is based on the principle of equality between parties. If the litigation capacity of the parties is substantially unequal, whether the outcome of the litigation formed by the parties' confrontation can be regarded as legitimate, then a question mark should be placed. This is probably the place where "南山必胜客" and similar phenomena deserve the most attention and consideration. As for how to view the relationship between super private capital and the judiciary, one should be wary of falling into the bipolar thinking trap of "capital worship/capital evil". Capital has the motive of infiltrating, eroding and capturing justice in order to pursue profits, but it cannot be easily presumed to be Presumption of guilt.