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Urumqi northwest fulai industry and trade co., ltd v Urumqi northwest translation industry co., ltd.

(contract)

(1) Header

1. Font size of judgment

Judgment of first instance: Tianshan District People's Court, Urumqi, Xinjiang Uygur Autonomous Region (2005) No.937 Tian Minzi.

Judgment of second instance: Urumqi Intermediate People's Court of Xinjiang Uygur Autonomous Region (2005) Wu Zhongmin Zhong Er ZiNo. 1084.

2. Cause of action: contract dispute.

3. Both parties to the lawsuit

Plaintiff (Appellee): Urumqi Northwest Fulai Industry and Trade Co., Ltd. (hereinafter referred to as Northwest Fulai Company).

Legal Representative: Jiang Bing, board chairman.

Authorized Agent: Zhang.

Defendant (appellant): Urumqi Northwest Translation Industry Co., Ltd. (hereinafter referred to as Northwest Translation Company).

Legal Representative: Li Danping, general manager.

Authorized Agent: Sun Jingyu, lawyer of Xinjiang Tianfang Law Firm.

4. Trial level: second instance.

5. Judiciary and judicial organizations

Court of first instance: Tianshan District People's Court, Urumqi, Xinjiang Uygur Autonomous Region.

Single judge: Judge: Zhao Lijun.

Court of second instance: Urumqi Intermediate People's Court of Xinjiang Uygur Autonomous Region.

Member of the collegial panel: presiding judge: Xu Yanping; Judge: Li Jing; Acting judge: Zheng Ming.

6. Closing time

The first trial was concluded on June 65438+10/October 65438+August 2005.

The second trial was concluded on February 20, 2006.

(2) the complaint of first instance

1. The plaintiff complained

At the beginning of June 2005, in order to expand our business, our company entrusted Northwest Translation Company to translate its brochures and advertisements, and then printed, painted and mounted the materials translated by Northwest Translation Company to make brochures or billboards. Later, our company found that there were many translation errors in the translation materials, including the company name, which made the above publicity materials invalid and adversely affected our reputation and business activities. Therefore, Northwest Translation Company is required to return the translation fee of 5 16 yuan and compensate for the loss of 30,400.95 yuan and 5,000 yuan.

2. The defendant argued that

Translation errors are inevitable, and the national translation quality standards allow a certain error rate. Because the two parties have not concluded a written translation contract and made no special agreement on translation quality standards, the translation errors mentioned by Northwest Fulai Company cannot prove that our company constitutes a breach of contract, so we do not agree to compensate the economic losses required by Northwest Fulai Company.

(3) Facts and evidence of first instance

The People's Court of Tianshan District, Urumqi City, Xinjiang Uygur Autonomous Region found through trial that in June 2005, Northwest Fulai Company handed over its company profile, product series and other Chinese characters to Northwest Translation Company for English and Russian translation; On June 3rd, 2005, Northwest Translation Company charged Northwest Fulai Company a translation fee of 5 16 yuan. Later, in the translation manuscript sent by Northwest Translation Company to Northwest Fulai Company, all Russian words of "Fulai" were translated into "JIA N φ Y" by Northwest Translation Company. On August 29th, 2005, Northwest Fulai Company used the translated manuscript of Northwest Translation Company to make the text content in our company's brochures, posters and folding pages, and paid the production fee 17 180 yuan. Among them, the company name "Frye" in the album cover and homepage "Company Profile" of "Northwest Fulai Plastic Color Printing Industry and Trade Co., Ltd." is still translated into "Ji A n φ y" in Russian. The company address of the album's back cover is "Jinhao Hotel", and the English translation is "Mianma Hotel"; The company name "Fulai" in the hinge of "Northwest Fulai Plastic Color Printing Industry and Trade Co., Ltd." is also translated into "Ji A n φ y" in Russian. After the Northwest Fulai Company successively produced outdoor three-dimensional billboards, which were hung and posted for corporate publicity. The Russian translation of the company name in the billboard above is also "Jia N φ Y". Meanwhile, in August, 2005, Northwest Fulai Company paid 3 500 yuan for installation, 8 1 540 yuan for painting materials and 818,095 yuan for painting. During the trial, Northwest Translation Company provided the national standard GB/ 19628-2005 for translation quality requirements of translation services, indicating that reasonable error rates are allowed in translation.

The above facts are proved by the following evidence:

1. Translated manuscripts by Northwest Translation Company which provides translation services for Northwest Fulai Company;

2. The picture book processed and produced by Northwest Fulai Company according to the translation;

3 northwest translation company translation and production of album and other documents;

4. Statements by both parties;

5. Records of court investigations.

(4) Reasons for first instance.

The People's Court of Tianshan District, Urumqi City, Xinjiang Uygur Autonomous Region held that the enterprise name is the key word in the opening content of enterprise publicity materials and the primary content for consumers and the public to know and understand the enterprise. Northwest Translation Company provides translation services for Northwest Fulai Company, and under the condition that the original text is correct, it mistranslated its company name, resulting in that the Chinese company name expressed by Northwest Fulai Company in its promotional materials is inconsistent with the Russian company name, and the promotional materials produced by Northwest Fulai Company cannot be used. When translating the name of Northwest Fulai Company, Northwest Translation Company only translated "Fulai" into pinyin, but when publishing the translation manuscript, it translated "Fulai" into "Frye" (φy, φy). This kind of word order inversion error is entirely caused by work errors in translation, which cannot be considered as a reasonable mistake of the translator, so it is a reason for northwest translation. Northwest Fulai Company has produced a lot of publicity materials according to the contents of the translated manuscript. If it continues to be used externally, it will inevitably lead to misunderstanding of consumers and affect their corporate image and corporate publicity. Northwest Fulai Company's claim to refund the translation fee and compensate for the production fee of materials and promotional materials is reasonable, and our hospital supports it. Northwest Fulai Company's claim for compensation of 5,000 yuan for reputation damages from Northwest Translation Company is not supported by our court because there is no legal basis.

(five) the conclusion of the case examination and approval

The Tianshan District People's Court of Urumqi, Xinjiang Uygur Autonomous Region, based on Article 111th of the General Principles of the Civil Law, made the following judgment:

1. The defendant Northwest Translation Company compensated the plaintiff Northwest Fulai Company for the translation fee 5 16 yuan.

2. The defendant, Northwest Translation Company, compensated the plaintiff, Northwest Fulai Company, for the loss of materials and production costs of 30,400.95 yuan.

3. Reject the plaintiff's claim that Northwest Fulai Company requires the defendant Northwest Translation Company to compensate the reputation loss of 5,000 yuan.

The acceptance fee of this case is 1446.67 yuan, and the other legal fees, 20 yuan, shall be borne by the plaintiff Northwest Fulai Company 1466.67 yuan, that is, 205.33 yuan; The defendant Northwest Translation Company bears 86%, namely 1.26 1.34 yuan.

(6) the situation of the second instance

1. Plea in the second instance

(1) The appellant (the defendant in the original trial) claims that

The comprehensive error rate of our company's translated texts does not exceed 1.5%, which is in line with the national standard of Quality Requirements for Translation Services. As the plaintiff, Fulai Company failed to submit legal evidence to prove that the quality of our translation work did not meet the requirements, and there was no evidence to prove that our behavior constituted a breach of contract, so it should reject its claim. Whether there are quality problems in our company's translation should be appraised by a professional translation agency. The loss of Fulai Company is totally fabricated and has no factual and legal basis at all. We ask the court of second instance to find out the facts and reject the lawsuit of Fulai Company according to law.

(2) the appellee (the plaintiff in the original trial) argued that

Translation companies cannot cite the quality requirements of translation services to justify their mistakes. As the standard has not been promulgated at the time of this case, the national standard is not applicable to this case. The original translation with the seal of the translation company submitted by our company has been approved by the translation company in the first instance, and the seal is also sealed by its company. Because the translation company translated "Northwest Fulai" in Russian into "Northwest Fulai" and "Jinhao Hotel" in English into "Mianma Hotel", the picture books, posters, folding pages and inkjet prints translated and printed by our company according to the original text could not be used, and the total loss cost was 30,400.95 yuan (including installation fee). With the official national invoice as evidence, the translation company should compensate. The court of first instance ruled correctly and requested the court of second instance to uphold the original judgment.

2. Facts and evidence of second instance

The facts identified by the Intermediate People's Court of Urumqi, Xinjiang Uygur Autonomous Region are consistent with those identified in the original trial.

3. Reasons for the judgment of second instance

The Intermediate People's Court of Urumqi, Xinjiang Uygur Autonomous Region held that Northwest Translation Company should complete the translation work according to the requirements of Northwest Fulai Company and ensure the accuracy of the translation. The company name is the key for the public to identify and understand the enterprise. Because Northwest Translation Company translated the name of Fulai Company into Frye Company in translation, its printed brochures, posters, folding pages and other publicity materials were inconsistent in Chinese and Russian, which affected the corporate image and corporate publicity. Therefore, Northwest Translation Company's defense that the company name translation error is a reasonable error in translation work cannot be established, and our hospital will not support it. Because the translated text delivered by Northwest Translation Company is defective and does not conform to the agreement, the promotional materials produced by Northwest Fulai Company based on the translated text of the translation company cannot be used, and Northwest Translation Company shall be liable for breach of contract. The court of first instance ruled that there was nothing wrong with Northwest Translation Company compensating Northwest Fulai Company for the loss of 30,400.59 yuan on the basis of the documents such as material cost and production cost provided by Northwest Fulai Company, which was upheld by our court. The original judgment found that the facts were clear and the applicable law was correct, which was upheld by our court.

4. two. wind up/close/conclude a case

The Intermediate People's Court of Urumqi, Xinjiang Uygur Autonomous Region made the following judgment in accordance with the provisions of Item (1) of the first paragraph of Article 153 of the Civil Procedure Law:

Reject the appeal and uphold the original judgment.

The acceptance fee for the second trial of this case is 1446.67 yuan, which shall be borne by Northwest Translation Company.

(7) explanation

In this case, there were obvious errors in the text of the advertising materials translated by the defendant Northwest Translation Company for the plaintiff Northwest Fulai Company. Whether the reason that "translation errors are inevitable" and "the comprehensive error rate of our translation does not exceed 1.5%" is valid or not is a question that the defendant's court must judge when deciding whether to support the plaintiff's claim for compensation from Northwest Fulai Company.

Translation is a mental activity to translate the text of one language into the text of another language. It can be said that this kind of activity is a mental labor service for translators. If the translator, as the client, completes the translation work with his own knowledge and the client pays him a certain amount of remuneration, the translation work will form a translation service contract relationship.

From the aspects of the parties, objects, rights and obligations of the translation service contract, the translation service contract is a special contract in the category of contract. According to Article 253 of the Contract Law of People's Republic of China (PRC) (hereinafter referred to as the Contract Law), the contents of a contract include the subject matter, quantity, quality, remuneration and method of the contract. This clause indicates that the quality of the work products completed by the contractor should be stipulated in the contract. In the case of quality agreement in the contract, whether the work products completed by the contractor meet the quality requirements shall be subject to the agreement of both parties. The translation service contract in this case is a specific contract. Judging from the formation process, the two sides only reached an oral agreement on rights and obligations, but did not sign a written contract, and did not have the conditions to judge whether the work results completed by the defendant as a contractor met the quality requirements according to the written agreement. Even so, according to the particularity of the translation service contract, it can be inferred that both parties have reached an oral agreement on the quality of the work, and the translation work completed by the defendant Northwest Translation Company should meet the quality requirements of the oral agreement. The particularity of a translation service contract lies in that as far as the quality of the work product is concerned, the quality standard is simply agreed, and the inspection quality is subject to the translation materials provided. Northwest Fulai Company entrusts Northwest Translation Company to translate its Chinese brochures and advertisements into English and Russian brochures and advertisements. The quality requirement is that the translated brochures and advertisements in English and Russian are exactly the same as those in Chinese, and there can be no mistakes. Northwest Translation Company accepted the entrustment, which enabled both parties to reach an oral agreement on the quality standard of translation work. To test whether the quality of translation work completed by Northwest Translation Company meets the requirements of oral quality, the translation materials provided by Northwest Fulai Company, namely its Chinese brochures and advertisements, shall prevail. Specifically, if the meaning or transliteration of English and Russian brochures and advertisements submitted by Northwest Translation Company is completely consistent with the contents of Chinese brochures and advertisements provided by Northwest Fulai Company, it shall be deemed as conforming to the oral agreed standards; Otherwise, even if there are mistakes in individual sentences or transliteration, they should be regarded as not meeting the standards agreed orally and constitute a breach of contract. Judging from the facts of the case, there are errors in the English and Russian versions translated by Northwest Translation Company. The previous mistake was to translate "Jinhao Hotel" into "Mianma Hotel"; The latter's mistake is to translate "rich from the northwest" into Russian "rich from the northwest" There are such obvious mistakes in the translated text completed by Northwest Translation Company, which obviously violates the oral agreement reached by both parties on the quality of translation work.

The defendant, Northwest Translation Company, argued that there was no quality problem in its translation for the plaintiff, Fulai Company, because the errors in its translated text did not exceed the national standards and were within a reasonable range. Generally speaking, contracts are superior to legal terms. As mentioned above, the quality of translation work should be stipulated in the contract, and the quality of translation work should also be tested according to the contract. The defendant Northwest Translation Company cannot use the standards stipulated by the state to defend the agreement between the two parties. Even to say the least, the defendant can defend with the standards stipulated by the state, which should also be in line with the situation of this case. The insiders believe that in principle, there should be no mistakes in translation. Even if the state stipulates that a certain proportion of errors are allowed in translation, it means that for translated articles and works, the translation of advertising content with short content and few words should not apply error rate. We think this understanding is correct. As you can imagine, if there is an error rate in the translation of advertising content, it may cause customers to fail to achieve the purpose of the translation service contract, and even cause serious losses. Visible, specific to this case, the defendant can't use the standards prescribed by the state to defend.

Because the defense of the defendant Northwest Translation Company cannot be established, it should be considered that the translation error constitutes a breach of contract. Article 262 of the Contract Law stipulates: "If the work product delivered by the contractor does not meet the quality requirements, the ordering party may require the contractor to bear the liabilities for breach of contract such as repairing, redoing, reducing remuneration and compensating losses." The brochures and billboards made by Northwest Fulai Company according to the translated texts completed by Northwest Translation Company are invalid, and the expenses incurred therefrom shall be deemed as the losses caused by Northwest Translation Company's breach of contract due to translation errors, and it shall be liable for compensation in accordance with the provisions of Article 262 of the above Contract Law.

(Yang Shanming, Higher People's Court of Xinjiang Uygur Autonomous Region)