Sunday, 5 August 2007

The first trial

The first Trial recording

Before the first trial

The net friends may remember that the original scheduled first trail was may 29th. It was put off and I had been waiting for sometime.

June 18th. I joined my new employer. I cannot control the result of this lawsuit. I cannot live on it even I win. My life is continuing always if I am live.

July 11th. Had a business trip to BeiJing for a ERP project. It was scheduled until the end of Octorber. The project manager is a nice foreigner and communicated with me well. I hoped that I could help him too.

2:00pm Friday, July 27th. I made a call to the Judge, Cai Dong Hui. He confirmed that the court was scheduling my lawsuit. The first trial should be Friday, Aug 3rd.

10:00am Monday, July 30th. Li Li, my lawyer for this case, sent me a message that the subpoena was sent to him. It stated that the first trial would be held on 9:00am, August 3rd, 2007. The place would be the 3rd courtroom of Shanghai Pudong court, No 611 Ding Xiang Road. I got the scanned electronic copy of it at afternoon. I thought that the project team were doing integration testing. 3 consultants had to answer questions from 30 users. I decided to stay in project so that Li Li had to attend the trial by himself only.

1pm, Wendnesday, 1st August, I got a call from Li Li. He told me that the original copies of evidence were needed in the trial. They lied in my travelling box which was in my hotel!

7pm, postman of Home express arrived my hotel in heavy rain. He looked an energetic young man. I handed the original copies to him. He told me that the latest arrived date is on August 3rd. I told him that I would lost my case. I asked him if his company had a special program for overnight delivery. I was willing to pay it. He smiled and refused my payment offer. But he told me that he will give this package a special care and it would be delivered tomorrow. I tried to tip him and was refused too. He then left the hotel in heavy rain. I am pity that he might be doing overtime work. In my impression, most Chinese workers do overtime work for free. I also feared that his business commitment of delivering my package on time. I did not know how good his company was. Back to room and sat still for an hour, finanlly I changed my mind to return to shanghai for upcoming trial. I dialed the phone of the postman and asked to cancel the service. But he said that the pakcage was loaded to a car already and in its way to airport.

August 2nd. I applied a 1 day leave from project. I called Li Li and told him that I would be in trial. He suggested that we met at 8:30am at the gate of the court yard to have a short discussion about the key points. The 7:00 flight departured at 9:00pm. Several minutes past 12:00pm, I stepped into my home.

7:11am, 3rd August. A SMS of Li Li said that my package of evidence original copies was delivered to him. Got up. Sighed saying my son having breakfast. Jeffery Wigand in The Insider hope that his dauter can see the TV programm in which he uncover the scandals of big tobacco. But I did not have any program or even no any real support so far. I wanted to take my son to listen the court. My wife did agree with me. She said it was just of wasting money and life. The media? My whistle was not bad. Save it for my self!

7:30am, August 3rd, my wife drove me to the trial then she would go to work. Turn to that lane. I reminded her. She move the sweel suddenly. You always bad idea! it's green that lane.This lane is not bad as well. Look, we moved.She was silent. The bastard is so bad. I had to be with him every day. No matter how wicky his smile is, I am angry. I want to give him a slap! Follow my order every thing from now. She smiled very sweet. Parking roadside, kiss, flying kiss, I love you, see u night.

The first trial

I called the postman and thanked him and his company for their excellent service. He wished me a good result because he surfed internet as well.

At the gate of the court yard, I met Mr. Yuan Ming Li from wikipedia for first time. He came only for listen the trial and support the lawsuit.

9:00am,the lawyer unlocked the door of the 3rd court room. The 2 representatives showed at last.

The judge, Mr. Cai Dong Hui was very young. I could be not remember the name of the cheif judge and the citizen Judge. Speed-writing seceratry was Qian Li Ying. The representative of the sued were likely named Le ying wei and Wang xiang dong. Le was a beautiful young lady. Wang was a young man high and thin. Cai introdued us each other one by one. I smiled to everybody in turn but got no response except Cai. Roughly at the end of introduction, I noticed the 2nd listener, a very energetic young man. I smiled him too. He returned me a stare lasting several seconds. I guessed him from Shanghai Telecom. Later at the end of the trial. He talked a while with Mr. Le and Wang then left before us. Until that time, he did not have a look at us.

In the procedure of the trial, Cai annouced the steps. The Cheif Judge control the speed and asked some questions, eg., what is a proxy server. Li Li and Miss Le were the main person arguing. I made some supplements sometimes which were mainly the details of some facts. Our requirements included two points. The first one wass the fix of the malfunction or the sued can explain us the reason of it in case they did not have the capability to fix it. The second one was expense claim for notary, broadband fee return etc. The fee of lawyer was expensive. But it was not listed in the original requesting document. So when Cai asked if we will include it. We dicarded it immediately. As both party acknowledged the identity each other and the service contract governs the relationship, the arguing moved quickly into the 2 focus below.

  1. If the phenomena that was not accecible occured at the service site which was my rented ADSL modem located. The evidences from the sueing for this included the notary 833 and a notary letter which had been delivered to the sued. The notary document 833 were the records of a series of steps operating the computer of notary office to access The notary letter stated the suing could not access and he raised a telephone maintenance request through telephone. He also got an answer of Non-replicalbe reason through call back. The sued acknowledged the maintenance call and the notary letter and they did not reply the notary letter. The sued's thoughts were that the 833 natary document did not record a behavior in a service site. they asked the court to confirm it unable to prove any thing. And more, the notary letter's content was nothing with this lawsuit. Hence they did not reply it. We argued that the computer in notary office was connected to the Internet through the Sued broadband as well (this point was not stated in the 833. But the sued did not argue with us. More, a result page when accessing were obviously the advertisement page of the sued. It contained even some ponographice pictures. We showed to the judge clearly. I also knew tha tthe ) According to the general understanding of the public, HTTP client should return the same information when trying to access the same URL. Otherwise, i must be manipulated at the accessing point. By combine the 833 notary document and the notary letter, the court shuold consider the statement of the suing true.
  2. Should the unaccessibility be responsibility of the broadband service provider? If yes, then how to define this reponsibility. The sueing required responsibility on the sued includes restore the accessbility or give a reason. For the reason of Non-replicable reason by the sued, the sueing can not accepted it. The sued submitted the machine records that the suing accessed the internet through the service provided by the sued during the stating period. And the sued stated that their service provide this service as-is and no other responsilibty. The suing stated that the access service provided by the provider did not provide true information according to the sueing's input. Instead, the sued service provided an advertisement page which brought benefits to its stake holder. This was not in accordance with the public understanding on Internet. And the sued did not have pre-notification to the suing. And the service contact stated indeed that the service should be in accordance with public common understanding.

The arguing details were boring and difficult to be gone through step by step here. I will post the trial record here once I got it.

Stepping out of the court, Li Li good-lucked this lawsuit and Chinese net friends. But he told me that he would not be my second trial lawyer if I lost the first trial. Because there were many outside factors impacting the result of the lawsuit. He also told me that the period of the first trial verdict should not exceed 6 months according Chinese law regulation. I needed to be prepared that it came out long time ago. I felt that he was very professional and of strong Internet background. But without media and public support, I could not expect too much on him to fight against strong bureaucray organizations in a Cervantes way.

Good bye Li Li. I wanted to see you again. I called the Judge Cai and asking him some thoughts. He said that it was not good time now. But he believe that the verdict of the first trial would come out shortly. His word was somewhat different from Li Li. I did not mind the speed of the Sentence. What I need is just fairness and consiousness from the public. Without public opinion, will this court good enough to have a fair judgement on this lawsuit? Or they do be very good and a good result will awake the public expectation and consiousness on fair and equalness. I need to go home asap and kiss my wife. She was waiting for me to find many physical pleasures. It's true happiness! Even I am a downgrade one? 1

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