In 2023, a total of 38 judgments and cases will be published in the SPC Gazette, and the following are the gist of the judgments and cases:
Issue 1, 2023.
1.Chen Long and Shaanxi Boxin Sports Culture Communication *** and other companies dissolution dispute case.
1. According to Article 16 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China (III), the shareholder rights restricted by shareholders due to their failure to perform or not fully perform their capital contribution obligations do not include their right to file a lawsuit for dissolution of the company.
2. The "serious difficulties" stipulated in Article 182 of the Company Law of the People's Republic of China include external production and operation difficulties and internal management difficulties.
2.Gansu Qianjinda Mining Development Group and Wancheng Business Dongshengmiao Co., Ltd. Earnings distribution dispute.
The necessary condition for shareholders to request the company to distribute profits is to submit a resolution of the shareholders' meeting that sets out the specific distribution plan. The specific profit distribution plan shall include the amount of profits to be distributed, the distribution policy, the scope of distribution, and the time of distribution. The key to judging whether the profit distribution plan is specific lies in whether the existing information can determine the specific amount of profits that the right holder claiming distribution can obtain according to the plan. If the resolution of the shareholders' meeting of the company determines the total amount of profits to be distributed and the time of distribution, and can determine the specific amount of profits that shareholders should receive according to the plan in combination with the provisions of the articles of association of the company on the distribution policy of dividends to be distributed by shareholders according to the proportion of capital contribution, the profit distribution plan specified in the resolution of the shareholders' meeting shall be regarded as specific.
Once the resolution of the shareholders' meeting specifying the specific distribution plan is made, the figurative right to claim for profit distribution will be transformed into a specific right to claim for profit distribution, and when the shareholder transfers equity from the membership right of the shareholder to an ordinary creditor independent of the shareholder's right, the abstract right of profit distribution claim will be transferred accordingly, and the specific right to claim for profit distribution will not be transferred with the transfer of equity unless expressly agreed in the contract. When the time for distribution of profits expires and the company does not distribute them, the right holder can directly request the company to pay the profits in accordance with the specific distribution plan specified in the resolution.
3.Jiangxi Tengrong Industrial Co., Ltd. and Jiangxi Bank Co., Ltd. Nanchang High-tech Sub-branch Creditor's Rights Transfer Contract Dispute Case.
If, in addition to the loan contract signed by both parties, the borrower and the lending bank separately sign a separate agreement on the transfer of creditor's rights and the entrustment of assets, stipulating that the borrower shall accept the creditor's rights of the lending bank and pay a certain amount of fees for the transfer of creditor's rights, but do not obtain any benefits, it shall be deemed that the transfer of creditor's rights and the entrustment management agreement of assets are for the purpose of collecting interest on the loan in disguise. The act of signing the agreement on the transfer of creditor's rights and the entrustment management of assets between the two parties is carried out with a false expression of intent, and shall be deemed invalid in accordance with law, and the effect of the act of collecting interest hidden by the act shall be handled in accordance with the relevant laws and regulations.
4.Peng Yuxiang v. Nanjing Urban Construction and Development (Group) Co., Ltd., a dispute over recourse to labor remuneration.
If an employer stipulates that an employee can receive a bonus after completing a certain amount of performance, but refuses to perform the relevant approval obligations without justifiable reasons, and the employee claims that the conditions for the award have been fulfilled and requests the employer to pay the bonus in accordance with the regulations, the people's court shall support it.
Issue 2, 2023.
5.Liu Meifang v. Changzhou Kairui Chemical Technology *** and other companies in a dispute over the confirmation of the validity of the resolution.
If a shareholder of a limited liability company fails to fulfill its capital contribution obligation or evades all of its capital contribution, and fails to pay or return the capital contribution within a reasonable period of time after being urged to pay or return it by the company, the company may disqualify him from the shares by resolution of the shareholders' meeting. However, if the shareholders of the company all make false capital contributions or withdraw all their capital contributions, and some shareholders disqualify specific shareholders from being shareholders through a resolution of the shareholders' meeting, since such shareholders themselves are not honest and abiding shareholders, their exercise of the power to delist loses the legal basis, and the resolution to delist shall be deemed invalid.
Issue 3, 2023.
6.Hebei Huasui Seed Industry and Wuwei Bosheng Seed Industry Co., Ltd. infringement of technical secrets dispute.
The breeding intermediate materials and inbred line parents formed in the process of crop breeding are different from the plant materials found in nature, and are the intellectual achievements of the breeder's creative labor, which has the characteristics of both technical information and carrier objects, and the two are inseparable. Breeding materials with commercial value obtained through breeding innovation activities may be legally protected as trade secrets under the condition that they are not known to the public and corresponding confidentiality measures are taken.
The growth of breeding materials depends on soil, water, air and sunlight, and requires field management, and it is difficult for the right holder to take foolproof confidentiality measures for the crop materials. The establishment of a confidentiality system, the signing of a confidentiality agreement, the prohibition of external proliferation, and the use of code names for propagating material may constitute reasonable confidentiality measures in specific circumstances.
7.Sichuan Zhongcheng Coal Construction (Group) Co., Ltd. and Chengdu Hongchang Jiatai Real Estate Construction Contract Dispute.
In the construction project, the construction materials and labor invested by the foundation pit contractor have been materialized into the building and are inseparable from the building, and the contractor of the foundation pit construction contract shall enjoy the priority right of compensation.
For the same construction project, there may be multiple contractors, and if the project completed by the contractor is a construction project, and the jointly completed construction project is suitable for discount or auction, the contractor's priority right to compensation shall be guaranteed in accordance with the law. According to the management norms and measures of the construction industry, the construction of deep foundation pit engineering includes the construction of supporting structures, groundwater and surface water control, earthwork excavation, etc., so the contractor of the construction contract of foundation pit support, precipitation, and earthwork excavation and transportation project requires that the contractor enjoy the priority right of compensation within the scope of the unpaid project payment, and the people's court shall support it.
Issue 4, 2023.
8.Shanghai AXA Property *** v. Wang Wenzheng, a labor contract dispute.
The employer's exercise of management rights should also be reasonable and bona fide. If an employee submits a leave request for leave due to the critical illness of an immediate family member, and the immediate family member dies during the employer's examination and approval period, and the employee returns home to deal with the aftermath, and the employer claims to terminate the labor contract on the grounds of absenteeism, it is illegal to terminate the labor contract and is not in line with social ethics. Where an employee demands compensation for the employer's illegal termination of the labor contract, the people's court shall support it.
9.Chongqing Yubei District People's Procuratorate v. Hu Renguo, a case of illegal logging of national key protected plants.
The act of illegally transplanting plants under national key protection without applying for a forest felling permit is "illegal felling of plants under national key protection" as provided for in Article 344 of the Criminal Law. The determination of whether the defendant has the subjective intent to illegally harvest plants under national key protection may be determined in conjunction with factors such as whether the wild plants have universally recognizable appearance characteristics, whether the defendant has work experience in the forestry industry, and whether special forest protection facilities have been set up in nature reserves.
Issue 5, 2023.
10.Shanghai Huanxin Electronic Technology Co., Ltd. v. Guangdong Farina Technology Co., Ltd. et al. Utility Model Patent Infringement Dispute Case.
In a patent infringement dispute case, if the prior art on which the accused infringer relies to assert the prior art defense is a technical solution disclosed by the accused party or a third party instructed by the infringer in violation of the express or implied confidentiality obligation, the people's court shall not support the prior art defense based on the technical solution.
11.Zhang Zhengguo v. Jiangsu Hongzhan Construction Project *** and other intermediary contract disputes.
The parties shall abide by laws and regulations when concluding and performing contracts, and must not disrupt social order or harm the public interest. Where the intermediary matter stipulated in the intermediary contract is to facilitate the signing of an invalid construction contract that violates the mandatory provisions of laws and regulations, the intermediary contract shall be invalid because it disrupts the order of the construction market and harms the public interest, and the people's court shall not support the intermediary party's claim for intermediary costs on this basis.
Issue 6, 2023.
12.Beijing Pair Medical Technology Co., Ltd. and Shenzhen Kexingxin Technology Co., Ltd. technology development contract dispute case.
In a case of a bilateral contract dispute, where both parties are mutually obligated to pay and one party fails to actually perform its own obligation to pay due to the other party's breach of contract, but requests the other party to perform its obligations, the people's court should not dismiss the claim solely on the basis that the requesting party has not fulfilled its obligation to treat and pay. In order to achieve the purpose of the contract between the two parties, it may be decided that the two parties should treat each other as payment obligations based on the facts of the case.
13.China Construction Bank Co., Ltd. *** Huaihua City Branch and China Huarong Asset Management Co., Ltd. *** Hunan Branch et al.
1. Enforcement objection litigation cases may be reviewed and handled with reference to the "Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objections and Reconsideration Cases by the People's Courts", and at the same time, a substantive review of whether the person not involved in the case enjoys civil rights and interests sufficient to preclude enforcement based on the specific circumstances of the case.
2. Whether a non-consumer home buyer can exclude the mortgagee's application for enforcement may be based on factors such as the nature of the rights of both parties, the sequence of time for obtaining the rights, whether there is fault in obtaining the rights, and how to reduce or prevent the recurrence of risks, combined with the specific circumstances of the case, and make a corresponding judgment after a substantive review of the rights enjoyed by both parties.
14.The People's Procuratorate of Jianhu County, Jiangsu Province v. Zhang Shaoshan and 32 others for illegal mining, and Ma Chaoyu covering up and concealing criminal proceeds.
In the crime of illegal sand mining, where the sand miner and the sand purchaser conspire in advance to illegally mine sand through the integration of mining and transportation, forming a chain of production and marketing interests, it shall be determined that the sand purchaser and the sand miner constitute a joint crime of illegal sand mining.
When determining the damage to the ecological environment caused by the crime of illegal sand mining, a comprehensive determination shall be made on the basis of quantitative indicators such as the amount of sand mining, the amount of direct loss of fish resources, the number of benthic organisms damaged, and the value of ecosystem services.
Defendants who have a criminal record of illegal sand mining or who commit the crime of illegal sand mining again during the period of release on guarantee pending further investigation shall find that they have the intent to damage the ecological environment, and where the public prosecution organ requires that they bear responsibility for punitive damages, the people's court shall support it.
15.Wuxi Municipal People's Procuratorate of Jiangsu Province v. Shanghai Yangpu District Greening and City Appearance Administration and other environmental civil public interest litigation.
In environmental civil public interest litigation cases initiated by the procuratorate as the plaintiff in public interest litigation, the requirements for judicial review of the withdrawal of the lawsuit are different from those for ordinary civil cases. On the basis of clarifying the equal status of both parties in environmental public interest civil litigation cases and reaffirming that the polluter bears responsibility for environmental restoration, the review criteria for whether to allow the withdrawal of a lawsuit should be stricter. In terms of substantive examination, the criterion of "all claims have been realized" should include that the ecological environment has been completely restored and that there is no risk of environmental pollution and ecological damage that may continue to occur in the future;In terms of procedural review, local procuratorates at all levels shall perform the corresponding review and approval procedures for withdrawing a prosecution, and where the Supreme People's Procuratorate approves the withdrawal of the prosecution and meets the criteria for withdrawal upon substantive review by the people's court, the withdrawal of the prosecution shall be approved.
Issue 7 of 2023.
16.China Development Bank Henan Branch applied for enforcement supervision.
The person subject to enforcement who has entered the bankruptcy reorganization procedure fails to notify the creditors who have previously entered the enforcement procedure to declare their claims, resulting in the loss of the opportunity to claim their claims in the bankruptcy reorganization procedure;After the completion of the implementation of the reorganization plan, the creditor has the right to exercise its rights in accordance with Article 92 of the Enterprise Bankruptcy Law of the People's Republic of China and apply for resumption of enforcement in accordance with the repayment conditions of the same type of creditor's rights stipulated in the bankruptcy reorganization plan.
17.Wu Haohao and Rugao Jinding Real Estate *** and other shareholder qualification confirmation disputes.
Where the change of equity registration of a foreign-invested enterprise does not fall within the scope of the negative list management as provided for in article 4 of the Foreign Investment Law, and the parties claim that the consent of the examination and approval authority for the change of registration should be obtained on the basis that the relevant legal act occurred before the implementation of the Foreign Investment Law, the people's court shall not support it in accordance with the principles of "giving national treatment" and "consistency between domestic and foreign investment" as provided for in the Foreign Investment Law.
18.Li Heng v. Jiangsu Wuxing Electric Appliance *** Sales Contract Dispute.
The date of manufacture of household appliances falls within the scope of the consumer's right to know. Where business operators sell "inventory machines" of household appliances and fail to take the initiative to inform them of the true situation of the electrical appliances, violating consumers' right to know and the right to make their own choices, and where consumers claim to replace the same type of new electrical appliances free of charge, the people's courts should support it.
19.Zhengzhou Trolling Network Technology and Zhejiang Tmall Network *** Ding Xiaomei et al.
After the rights holder complains to the e-commerce platform that the seller on the platform has infringed its intellectual property rights, and the e-commerce platform deletes the sales link of the relevant goods in accordance with the relevant provisions of the E-commerce Law, the seller may apply to the court for a ruling requiring the e-commerce platform to restore the deleted sales link first. The people's court shall comprehensively consider factors such as the possibility of infringement of the goods sold, whether the deletion of the sales link may cause irreparable damage to the seller, the guarantee provided by the seller, and whether the deletion or restoration of the link is harmful to the public interest, and other factors, and decide whether to restore the deleted sales link first.
20.Shanghai Changning District People's Procuratorate v. Gu Li and Gu Quanfei for fraud.
Where a computer information system has the function of disposing of property and is operating normally, and the perpetrator satisfies the preset conditions of the controller of the computer information system through illegal means, such as carrying out acts that damage the computer information system such as adding or deleting data, causing the controller to fall into a misunderstanding and granting the actor the authority to obtain property through the computer information system, the conduct constitutes the crime of fraud.
Issue 8, 2023.
21.Jinchang Jiuce Industrial Gas Co., Ltd. and Gansu Fengsheng Environmental Protection Technology Co., Ltd. processing contract dispute case.
The liquidated damages for late payment stipulated in the contract and the delay in performance stipulated in the Civil Procedure Law are two different civil liabilities that can be used together. After the court judgment takes effect, if the default of late payment continues to exist before the debt is repaid, the debtor shall continue to bear the liability for default of late payment, and the creditor's request to calculate the liquidated damages to the date of actual repayment shall be supported by the people's court.
22.Jiangsu Dongheng International Group and Jiangsu International High-tech Exhibition and Trading Center bankruptcy liquidation and reconciliation case.
For micro, small and medium-sized enterprises that have the hope and value of saving, they should be actively guided to resolve the debt crisis through bankruptcy reconciliation procedures. Explore the use of pre-voting rules, solicit the opinions of all creditors through the hearing procedure, and promptly rule to approve the settlement agreement in accordance with the adopted voting rules after the transfer to the reconciliation procedure, efficiently promote the reconciliation procedure, promote the rapid rebirth of small, medium and micro enterprises, and stabilize market entities and protect people's livelihood and employment.
23.Shanghai Huijun Logistics v. Ping An Property Insurance Co., Ltd. Shanghai Branch et al., a property insurance contract dispute.
To determine the true expression of intent formed by the final agreement of the parties to an insurance contract, a comprehensive judgment shall be made in conjunction with the constituent content of the insurance contract, such as the insurance policy, the insurance policy or other insurance certificates, and the insurance clauses. The contents of the contract that have been incorporated into the contract in accordance with the law and have taken effect are legally binding on all parties to the insurance contract. Where a party only asserts its rights under the insurance contract on the basis of a unilateral expression of intent that has not reached a final agreement in the process of concluding the contract, the people's court will not support it.
Issue 9 of 2023.
24.Weifu International*** v. Huang Jianrong, Shanghai Haicheng Resources (Group)** and other service contract disputes.
The determination of joint and several liability must be based on clear legal provisions or contractual agreements, and joint and several liability cannot be arbitrarily determined by exercising discretion.
25.Xuzhou Railway Transport Procuratorate of Jiangsu Province v. Shi Jinglong, a case of environmental pollution.
In environmental pollution crimes, where enterprises and individuals involved in the case that meet the scope and requirements for the application of enterprise compliance reform and have completed effective compliance corrections request a lenient punishment on the grounds that the enterprise has passed the compliance rectification, and the people's court finds through trial that the compliance rectification of the enterprise involved in the case is effective, it may make the compliance rectification qualified as a discretionary lenient circumstance.
26.Chinese People's Property Insurance Co., Ltd. *** Zhongshan Branch v. China Pacific Property Insurance Co., Ltd. *** Dongguan Branch et al. Property Insurance Contract Dispute.
Under duplicate insurance, if the insurer who has paid the insurance has the right to claim apportionment, it may recover from the insurer within the scope of the share that the other insurer has not fulfilled for the part of the insurance compensation actually paid in excess of its own share. The insurer who has paid the compensation exercises the right to claim apportionment, and accordingly enjoys the rights of the insured. The defense of the insured by other insurers may be asserted against the insurer that has already been paid.
Where the property insurance contract stipulates that a third party outside the contract is the insured, and the insurer fails to prove that the third party refuses within a reasonable period of time, and the third party requests that the insurer bear the liability for compensation as agreed in the insurance contract, the people's court shall support it.
27.China Acrobatic Troupe v. Zhang Shuo Acrobatic Troupe of Sangyuan Town, Wuqiao County, et al., a copyright ownership and infringement dispute.
Where acrobatic movements are the main form of expression, where there are personalized arrangements, trade-offs, and designs in the connection and choreography of movements, and where there is a certain degree of artistic expression and originality, it may be found to be an acrobatic work of art under the Copyright Law. The simple combination and repetition of conventional acrobatic movements in the public domain are not within the scope of protection of the Copyright Law due to lack of originality.
Works with acrobatic movement design as the main content and incorporating certain dance movement design can be protected as acrobatic art works as a whole. For the soundtrack, costumes, and stage design in acrobatic programs, it should be judged whether they can constitute other types of works such as ** or fine arts according to their specific forms of expression, and then determine whether they are to be independently protected.
Issue 10 of 2023.
28.Wenchang Yinghai Qinglan Water and Wenchang Ecological Environment Bureau of Hainan Province and other administrative penalties and administrative reconsideration bills.
Environmental administrative punishment shall implement the principle of proportionality of punishment, and make a punishment equivalent to the nature, circumstances and degree of social harm of the illegal act in combination with the reasons for the violation, the circumstances of the violation, the subjective fault, the degree of harm and the correction situation.
Where the counterpart is subjectively not at fault and does not cause harm, and the operation has been completed and accepted before the punishment is passed, the administrative organ shall not give an administrative punishment.
29.Beta S. Ltda.v. Tianjin Luzhi Iron & Steel Co., Ltd., a dispute over an international sale of goods contract.
When applying the "objective criteria" of Article 8 of the United Nations Convention on Contracts for the International Sale of Goods to interpret contract terms, factors such as the meaning of the words actually used by the parties, their relationship with the context, and commercial reasonableness should be taken into account, as well as the relevant facts and circumstances, so as to determine "the understanding that a reasonable person should understand". Delay in payment by the buyer, unless the seller fixes a grace date for the buyer in accordance with the relevant provisions of articles 63 and 64 of the Convention, and the buyer still fails to perform its payment obligation or declares that it will not perform within the prescribed time before the end of the grace payment date, the buyer's actual payment later than the agreed date does not normally constitute a fundamental breach of contract under the Convention.
30.Gao Liusheng v. Xinzheng Municipal People** et al., Administrative Compensation Dispute.
Where restrictive acts made by administrative organs on land use and other such acts directly lead to a significant impairment of the parties' property rights and interests, and the parties request that the administrative organs give administrative compensation, the people's courts shall support it.
31.Hunan Yahua Seed Industry Research Institute v. Zhang Yang, a dispute over infringement of the right to a new plant variety.
If the propagating material of the authorized variety is used without permission and is reused to produce the propagating material of another variety, the infringing party shall bear the burden of proof on the fact that the allegedly infringing seed is produced with the authorized variety as the parent on the basis of the existence of a kinship between the allegedly infringing seed and the authorized variety. The "reuse" in the alleged infringement should be understood as the repeated propagation of the propagating material of the authorized variety as the parent and the propagation of other parents.
Issue 11 of 2023.
32.Wuhu Huarong Xingshang Investment Partnership (Limited Partnership) and Huangshan District, Huangshan City, Celebrity International Artist Manor, etc.
Whether or not a partnership initiates a lawsuit over a dispute arising in the course of operation is a relatively important business matter of the partnership and cannot simply be attributed to the daily affairs of business activities. If the partnership agreement does not stipulate a clear voting method on the matter, and the executive partner of the partnership enterprise has a dispute on the matter, the application of the majority of capital voting to the resolution is not conducive to protecting the interests of small and medium-sized investors, nor can it reflect the personal nature of the partnership, and the voting method of one person, one vote and approved by more than half of all partners shall be implemented in accordance with the provisions of Article 30 of the Partnership Enterprise Law of the People's Republic of China.
33.Chen Wugui v. Nanjing Detong Automobile Service *** Labor Contract Dispute.
If an employer includes some of the necessary contents of Article 17 of the Labor Contract Law, such as job content, labor remuneration, and labor contract term, in the employee recruitment roster filed with the administrative organ, and has paid social insurance for the employee, it shall be determined that the employer has not maliciously harmed the lawful rights and interests of the employee. Under such circumstances, if the employee deliberately does not sign a written labor contract and claims a second time of salary on the grounds that he has not concluded a written labor contract, it is a violation of the principle of good faith to seek additional benefits, and the people's court will not support it.
34.Cheng Junping v. Shanghai Newstar Import & Export *** et al., a dispute over the confirmation of shareholder qualifications.
The Foreign Investment Law of the People's Republic of China adopts the pre-establishment national treatment and negative list management model for foreign investment. Where a foreign anonymous shareholder applies for confirmation of equity and a change of registration in the name of the company, in addition to proving that the company has actually invested and has the status of a recognized shareholder, the people's court may confirm that the company is a prominent shareholder if the field in which the company is engaged does not fall within the scope of the negative list for foreign investment;If the company is engaged in a restricted field on the negative list, it should also obtain the consent of the competent authority for foreign investment.
35.Guanyun Zhongfu Environmental Protection Technology v. Guanyun County People** et al., a dispute over the revocation of the franchise agreement.
The conclusion of administrative agreements shall follow the principle of administration according to law. When an administrative organ concludes an administrative agreement such as a public utility franchise, it is a pre-contractual obligation for the administrative organ to select the contracting party in a fair competition manner. The conclusion of such an administrative agreement through unfair competition violates the mandatory provisions of laws and regulations, and constitutes a "major and obvious violation" as provided for in article 75 of the Administrative Litigation Law, and the people's court shall make a judgment in accordance with law to confirm that the administrative agreement is invalid, except in a few exceptional circumstances, such as confirming that the agreement is invalid and endangering public safety.
Issue 12 of 2023.
36.Case of Gu X A, Gu X B, and Gu X C applying for the appointment of an estate administrator.
After the commencement of inheritance, if there is no heir, and there is no statutory obligation to support the deceased but in fact a large number of supporters, they meet the conditions of "may be distributed to an appropriate estate" as provided for in Article 1131 of the Civil Code of the People's Republic of China, and they have a legal interest in the proper custody of the estate, and they have the right to apply to the people's court for the appointment of an estate administrator.
37.Zeng Haibo v. Changsha Yuelu District Transportation Bureau and other administrative penalties and administrative reconsideration cases.
Private passenger car carpooling (also known as carpooling, hitchhiking) is not a road transport business behavior, does not belong to the "People's Republic of China Road Transport Regulations" adjustment scope, the administrative supervision of the behavior should follow the legal principle of punishment.
The ride-sharing platform is the provider of ride-sharing service information and has the corresponding obligation to review the ride-sharing information, and if the ride-sharing information provided by the ride-sharing platform is supervised by the ** department, the carpooling behavior carried out by the car owner in accordance with the information provided by the platform based on the reasonable trust of the ** supervision shall be protected by law. Where an administrative organ determines that the vehicle owner's conduct constitutes an illegal ride on the basis of this information, and imposes an administrative punishment on him, the people's court will not support it.
38.Ding XX v. Ji XX et al., a liability dispute case of educational institutions.
Where the guardian of a person without capacity for civil conduct is unable to actually perform guardianship duties due to the teaching needs of an education and training institution, during this period, the education and training institution shall undertake the duties of supervision, management, and protection of the person without capacity for civil conduct. Where an education and training institution fails to perform the duties described above for its own reasons, causing a person without capacity for civil conduct to carry out acts of assistance to others during the period of study or life at the education and training institution, causing harm to others, and the person without capacity for civil conduct subjectively does not have the intent to harm and objectively does not have the cognitive ability to foresee that the act of helping may cause harm, the education and training institution shall bear tort liability in accordance with law.