Du Qiuming's brains, assumptions and deductions are all perfect.

However, the courtroom is ultimately the place to talk about evidence.

After all, when the Jinmen Court ruled that "Wang H lost the case against counterfeiting", whether Wang H was considered a professional counterfeiter, and whether he went to buy counterfeit goods and asked for compensation after he went to buy counterfeit goods did not belong to "buying counterfeits with knowledge of fakes, and shopping with compensation as the motive, not shopping with consumption as the motive", it is not really as the layman's brain makes up, as long as the lawyer representing the interests of the merchant can use his mouth.

For example, when the field of criminal law emphasizes the "unity of subjectivity and objectivity", the subjective state of mind when judging a person's crime, whether it is intentional or negligent, or an accident without fault, is not based on the suspect's own words.

If the objective pattern of behavior and the evidentiary elements show that you are intentional, it is useless for you to say that you are negligent.

Although there is no principle of "unity of subjectivity and objectivity" in the field of civil law, the principle is the same.

Therefore, even if Ma Hesha was slightly flustered because of Du Qiuming's muddy waters for the time being, Yu Meiqin, who provided her backing, always had a very clear idea.

Moreover, Yu Meiqin's response was never impatient, but step by step, stepping steadily.

Obviously, she has substantial counterattack materials at hand, but she still follows the steps and uses the procedural counterattack materials in order first, without wasting them at all.

"Sister, even if she has a huge advantage, she will not rush to pass. Yu Meiqin thought silently.

Finally, it was her turn to make a statement.

Yu Meiqin said calmly: "Honorable presiding judge, I would like to draw the court's attention to the fact that what the plaintiff's lawyer has just said is nothing more than groundless speculation about the subjective mentality of our client. However, I did not find any evidence in the evidence submitted by the plaintiff in the first instance that could be used to prove this element.

According to the Civil Procedure Law, no new evidence may be presented in the second instance without a legitimate reason, and even if new evidence is submitted, the court of second instance should not directly change the judgment in court. Therefore, I applied to the presiding judge to rule that the additional claims submitted by the plaintiff were not considered. ”

As soon as Yu Meiqin finished speaking, the reporters in the venue could basically understand it, because this legal principle is very popular, and laymen who usually report on this aspect understand it after seeing a lot.

It is nothing more than "in order to prevent the sneak attack of evidence in the final trial, it is generally not allowed to present new evidence in the second instance".

However, as journalists, it is unlikely that they can invoke this law at this point in time to fight back. At most, after Yu Meiqin reported the answer, she raised her face and shouted "search for dead milk".

If you look at it with hindsight, it's okay to slap your thigh and shout "That's a lot of goods".

The presiding judge nodded slightly, and then turned to Du Qiuming: "Please ask the plaintiff's agent to state the legitimate reasons for adding evidence, if you can't do so, this court will rule that it is not accepted." ”

Du Qiuming also took a few deep breaths and replied calmly: "Dear presiding judge, according to the relevant provisions of the Civil Procedure Law, when the second-instance trial encounters substantial new evidence, it is true that the judgment should not be directly changed under normal circumstances, but this does not mean that the second-instance trial does not need to review the evidence.

If, after reviewing the new evidence, the tribunal finds that it is sufficient to affect the original judgment, it needs to remand for a new trial. If the new evidence is not sufficient to affect the original judgment, the original judgment may be directly upheld. Therefore, I believe that it is necessary to cross-examine the facts I presented at the previous stage.

Secondly, on the issue of the time limit for presenting evidence, our application for a determination was that the defendant deliberately submitted a reply and filed a counterclaim when the time limit for presenting evidence was deliberately approaching the expiration of the time limit for presenting evidence in the first instance. Therefore, for the evidence collection work related to the defendant's counterclaim, we actually did not get the full amount of evidence collection time in the first instance. The additional evidence submitted this time was submitted by our side when the reply of the second instance was submitted, so we applied to this court to rule that the evidence was valid. ”

His response made the spectators in the stands feel a little obscure.

Although every sentence he says is supported by laws or interpretations, it is rarely used in ordinary times.

In a word, the principle of "remanding for retrial if new evidence is found in the second instance" in the Civil Procedure Law is actually inaccurate.

To be precise, it should be "after discovering new evidence in the second instance, first take a general look at it, and if this evidence can change the verdict, then it will be remanded for a new trial." If there is new evidence, the evidence is valid and relevant to the case. However, after the review, it is found that it is not enough to change the verdict, then there is no need to bother remanding the case for a new trial, and the original verdict can be directly upheld."

In other words, it is "a successful sneak attack on evidence, and it must be remanded for retrial." But if the sneak attack fails, the original verdict will be upheld."

The question is, if you have failed to sneak attack, why do you have to insist on being watched by others? Isn't this equivalent to knowing that a certain attack will miss, and you still have to cut this knife empty?

The analogy may not be appropriate, but that's pretty much it.

As for Du Qiuming's later remarks that their side has reason to postpone the addition of evidence, although it cannot be said to be steady and steady, it makes sense, it depends on what the presiding judge says.

"Does the defendant's attorney need to object to the above statement?" the presiding judge politely turned to Yu Meiqin and asked.

At this time, Yu Meiqin is not suitable for entanglement anymore.

She probably also realized that Du Qiuming wanted to muddy the water as much as possible, even if it didn't work in the end, he would smear Ma Hesha and Feng Jianxiong at the level of public opinion.

After all, the crux of this lawsuit lies in Apple's goodwill, not the loss of tangible assets.

Therefore, even if the lawsuit is decided, the impression of public opinion is still very important.

Even if the judge doesn't sentence Ma and Sha to touch porcelain, if the details of the trial process are spread to the society, and the fruit fans find a self-indulgent point and let them make up for it on their own, then it can still save something for Apple.

There's nothing to describe about these filthy things anyway.

After some confirmation, the two sides began to cross-examine the point of "whether Ma and Sha came to touch porcelain subjectively".

Du Qiuming cited some evidence on the second-instance trial submission list.

Of course, it is very difficult to prove a person's subjective state of mind, so there is only indirect evidence, no direct evidence (direct evidence is only the testimony of the cross-examination of the defendant, but as long as Ma Hesha does not leak his mouth and is well-trained, Du Qiuming will not be able to ask dry goods. ）

Du Qiuming gradually began to disgust people: "Through the Jiangnan Branch of Huaxia Unicom, we obtained two consumption records of the defendant Ma Hesha's real-name registered phone card.

The consumption record period of one of the numbers covers the period from January last year to April this year. The other number's spending record period covers the period from July last year to April this year.

From these evidences, it can be seen that Miss Ma and Miss Sha have been users of Huaxia Unicom for many years and already have a number in the Unicom network segment. AND PLEASE NOTE THAT THE UIM CARD OF THAT NUMBER HAPPENS TO BE BACKWARDS COMPATIBLE AND CAN BE USED IN THE IPHONE-3GS.

HOWEVER, AFTER JULY LAST YEAR, IN ORDER TO USE THE IPHONE, SHE SPECIALLY GOT A NEW CARD AND POSTED IT ON WEIBO AFTER CRACKING IT ON THE IPHONE-3GS. At the same time, we can see from these records that the phone card she used to send Weibo had almost no SMS consumption and call consumption. All daily consumption is still generated on the old card, and even the old card has the online game recharge consumption record withheld by the operator.

WE ALSO HAVE RELEVANT DETAILS, ALL IN ALL, IT CAN BE PROVED THAT AFTER GETTING THE IPHONE-3GS MOBILE PHONE, MISS MA AND SHA USED IT ALMOST EXCLUSIVELY TO DO MICROBLOGGING, AND OTHER CONSPICUOUS BEHAVIORS THAT CAN PUBLICLY SHOW THAT SHE IS USING AN IPHONE ON SOCIAL NETWORKS - MAY I ASK THE DEFENDANT, DO YOU THINK THIS IS A NORMAL CONSUMER BEHAVIOR? A NORMAL PERSON WHO LIKES TO BUY WITH AN IPHONE WILL DO THIS 'ALL OTHER DAILY COMMUNICATION, USE THE MOBILE PHONE TO READ BOOKS, Do you still use old mobile phones, and then only use new mobile phones to do those behaviors that openly damage the goodwill of mobile phone manufacturers?"

YU MEIQIN IMMEDIATELY RIDICULED EACH OTHER: "HOW OUR CLIENT USES THE IPHONE IS HER FREEDOM." WHAT'S WRONG WITH HER ONLY USING HER IPHONE TO POST WEIBO? SHE JUST LEARNED FROM SOME SOURCES THAT THE WEIBO BETA APP AT THAT TIME HAD A SPECIAL DISPLAY EFFECT OF 'USING IPHONE TO POST WEIBO WILL DISPLAY ITS PLATFORM SUFFIX'. It is also known that this display effect is scarce.

THEREFORE, HE DID NOT HESITATE TO SPEND A LOT OF MONEY TO BUY OVERSEAS IPHONES AND CRACK THEM, IN ORDER TO REAP THE ADVANTAGES OF TRAFFIC ATTENTION BROUGHT BY THIS SCARCITY - THIS IS A NORMAL STRATEGY FOR SELF-MEDIA MANAGEMENT, AND IT IS COMPLETELY BENIGN USE. ”

Of course, Du Qiuming would not be willing to say this kind of statement from Yu Meiqin, so the two sides had an advantage.

However, the water was not muddied by Du Qiuming on one side.

People who watch the excitement think that Ma Hesha is a little eye-catching at most, but they don't treat her as a porcelain.

In this process, Yu Meiqin also inevitably criticized Unicom for colluding with foreign businessmen and leaking user consumption records to investigators in civil cases - but this kind of counterattack has little topic in China, and Chinese feel that this is the right thing.

After half an hour, it was Yu Meiqin's turn to give evidence.

Of course, the evidence has been submitted a long time ago, but it has not been used before and is inconspicuous, so there is no "delay in presenting evidence".

"THIS IS A CALL RECORD BETWEEN OUR PARTY AND AN OPERATOR OF THE TECHNICAL SUPPORT DEPARTMENT OF SINA COMPANY IN JULY LAST YEAR - IT CAN BE SEEN FROM THE RECORD THAT AT THAT TIME, OUR PARTY, AS A WELL-KNOWN PLUS V USER, ASKED THE OTHER PARTY ON THE ISSUE OF 'WHETHER THE INTERNAL SEALED BETA VERSION OF THE MOBILE CLIENT DEVELOPED BY SINA HAS DISPLAYED THE SUFFIX INFORMATION OF 'PUBLISHED ON THE IPHONE PLATFORM MOBILE PHONE'.

AFTER RECEIVING AN AFFIRMATIVE ANSWER, OUR CLIENT PURCHASED AN IPHONE-3GS MOBILE PHONE. Judging from the order of this timeline, our party purchased the mobile phone for a purely legitimate purpose......"

"Against!"

When Yu Meiqin said this, Du Qiuming immediately objected and interrupted her, "In the previous court trial, Miss Ma and Sha repeatedly stated that 'she did not know the source of the installation file of the IOS version of the Weibo app that had not passed the trial', and when we repeatedly asked her to explain 'the internal responsible person of Sina who provided her with the installation file', she also repeatedly refused."

Therefore, we believe that there is a material contradiction between this recording and the aforesaid testimony and should not be relied upon......"

"Please pay attention to the fact that this recording is stored by Sina's official customer service, and the authenticity and time record are beyond doubt. Moreover, in this call, our client only 'consulted whether such a thing exists', but did not directly ask the other party to provide installation documents.

The act of counseling and the actual implementation are completely different things. As we all know, our client is an impulsive girl who has no foresight in consumer behavior and is easy to pat her head and chop her hands, 'I didn't think about how to crack and install it in the future, so I just bought the mobile phone first and then said it', which is a completely normal behavior! The other party's agent can't understand the existence of this kind of consumer psychology, which doesn't mean that it doesn't exist!"

As soon as Yu Meiqin said this, the people who ate melons felt that Ma Hesha was indeed a pure and good young man who was easy to chop his hands impulsively, and the atmosphere of conspiracy suddenly dissipated a lot.

Yu Meiqin took advantage of the victory to pursue and continue to adduce evidence: "This is a chat record of our party's speech on his QQ in August last year, to a QQ group where the members of the group are mainly composed of his classmates or classmates and seniors. We requested the raw data from Tengyun's official server.

From the chat records, it can be seen that after our party bought the mobile phone that day, it still wouldn't crack it and couldn't find how to install it, so he complained in the group and asked the boys for help. Although none of the boys in the group at that time explicitly provided a one-stop solution, her mobile phone was indeed borrowed by an unspecified number of people to 'play', and when she finally got it back, it was cracked and installed. It can be seen that none of this was premeditated by our parties......"

……

"Now that both parties have finished their arguments, this court believes that the determination of the facts of this case has been fully completed. The court will be withdrawn today, and after the relevant judicial interpretations are clarified, the trial will be held at a later date for the application of law. ”

After a fierce battle, the presiding judge felt a little lacking in energy, his mouth was dry, and he announced that he would leave the court first.

Du Qiuming felt a deep sense of powerlessness coming at him.

Although this kind of nonsense may not be effective, he feels that today is a godsend: Feng Jianxiong did not appear in court, and he was busy explaining in the capital. He only needs to deal with one Yu Meiqin.

However, how can you not even beat that kind of little girl who has just graduated from a master's degree for a year?

This is not scientific!

Although, the other party's preparations are indeed very comprehensive and insidious.

Du Qiuming deeply felt that the lawyer who had been a lawyer for more than 20 years had done it in vain.

The family is sad and the family is happy.

Ma and Sa, who had been worried just now, also breathed a sigh of relief.

If Feng Jianxiong was here today, she would definitely not be worried. Now it turns out that on these occasions, it seems that it is no problem to rely on Sister Mai Qin to be alone.

"Sister Mai Trin, I'm sorry, I doubted your strength just now. ”

As the crowd of people who retreated from the court dispersed, Ma and Sasha shyly unscrewed the thermos cup and poured a cup of hot tea for Yu Meiqin.

Yu Meiqin smiled confidently and indifferently: "You don't have to say it, then I don't know that you doubted my strength." ”

"That'...... It's better to admit it. Ma and Saa said sincerely, "But, Sister Mai Trin, do you really like this kind of life? I always feel a little embarrassed for a girl to defend that 'insidious camp' setting." 'I know I'm in default, but I'm still going to lose money and continue to default', and it's better for a cheeky man to say it. ”

Yu Meiqin sighed: "I don't think that I have the same three views as Xiaoxiong in this regard - we are all educating and correcting this society." The reason why we can often say 'I know that I am in breach of contract, but I still insist on compensating while continuing to violate' is precisely because people in this world generally set the liquidated damages too low when signing contracts?

For the sale of a second-hand house with a price of 1 million, the contract deposit is only 50,000 yuan, and the second-hand house may take three months from signing the contract to the completion of the house - what does this mean? It means that you have to bet that the house price cannot increase by more than 5% in three months. Of course, this kind of growth rate can be covered in the off-season, but what about the peak season of the Chinese New Year?

When the liquidated damages are only 5%, and the market price has risen by 10% in three months, shouldn't it be a general default? Those with normal intelligence who have a long mind should learn to give a 20% deposit when signing a second-hand house purchase contract in August or December, which is the way to reduce disputes.

In the same way, in this case, Xiaoxiong and I are nothing more than a wake-up call for the Chinese people that they have never seen: even if it is movable property, even if it is electronic products, the right to things is higher than the right to debt, and these two things are different. ”