A brief introduction to typical cases involving banter.
On April 1 2006, the defendant Qin, who is known as the "King of Ceramic Art in the World", said in CCTV's "Country Agreement" program that if someone can finish the production of five-story hanging ball pottery, they can get the three-story real estate and all the property in the Qin Art Center building. The plaintiff Sun Zhen decided to solve this "mystery of the world". After a year's research, he finished five layers of hanging ball pottery. The defendant refused to accept it on the grounds of "the rotation of the internal hanging ball is not flexible" and "the work has not been seen". After that, the plaintiff continued to work hard to complete an excellent work in all aspects, and took photos and DV short films of the work, so she sent a lawyer's letter, photos and CDs to the defendant, but she never got a reply. The plaintiff filed a complaint with the court on June 8, 2007, requesting the court to decide to confirm the establishment and effectiveness of the reward advertisement for himself and the defendant. The defendant and lawyer said that the talk show was not an advertising activity, which was inconsistent with the structure and original intention of the plaintiff's work. Although the appearance is the same, "the two are not the same thing."
The court held that the defendant's offer of rewards to the public in the CCTV talk show was concrete, clear and true, and did not violate the prohibition provisions of the law, so it constituted an offer. After watching the program, the plaintiff completed the work as required and made a promise with his own behavior. Therefore, the expression of will of both parties is true, legal and effective, which meets the requirements of the offer, and the reward advertising contract is established according to law. Therefore, the defendant was sentenced to fulfill the reward content and hand over the real estate and property in the art center to the plaintiff. The presiding judge believes that this case is a form of acceptance and offer, which is based on the principle of autonomy of contract will and good faith. As long as it does not violate the mandatory provisions of the law and public order and good customs, the contract is valid.
In this regard, we once commented in the Procuratorial Daily that this case does not constitute a reward advertisement, but its nature should be a joke. [1] Some people support this and some people oppose it. [2] The main objection is that public statements in public should be regarded as advertisements offering rewards, and jokes are not legal concepts. Defining the defendant's behavior as a non-legal concept seems to be not conducive to seeing the legal truth of civil behavior clearly.
This case involves a series of issues such as whether the defendant's behavior is a reward advertisement or a banter, how to define the concept and nature of banter, the composition of banter and what the legal consequences are, which need to be further studied. In particular, China's General Principles of Civil Law does not stipulate banter, and judicial practice lacks the necessary trial experience for banter. The above objection to defining Xing's behavior as banter further illustrates the deficiency of banter research in theoretical and practical circles in China. Therefore, it is more necessary and urgent to discuss these problems theoretically.