1. Lawyer Litigation Case Template

1. Collection of basic case information

Case Type: Lawyer Litigation Cases

Business type: sales contract litigation

Court judgment date: July 13, 2006

Court name: People's Court of Fenghua City, Zhejiang Province

Attorney's name: Yue Zhenhong

Law firm name: Zhejiang Boning Law Firm

Contribution (real name, unit + name):

Review (real name, level by level):

Search subject terms: sales contract, mediation, voluntary, procedural error, co-defendant

2. Collection of case text

A case of a sales contract dispute of a trading company in Fenghua City

【Introduction to the case】

Feiyang Company signed a sales contract with Longjin Company, a canned food manufacturer, stipulating that Feiyang Company would purchase a batch of canned food from Longjin Company for export. The trading company and Feiyang Company entered into an export agency framework agreement, stipulating that the trading company would represent Feiyang Company to export goods to foreign countries. , and collect foreign exchange, handle tax rebates, etc. After the canned food was exported, Longjin Company issued a VAT invoice to the trading company at the instructions of Feiyang Company, but Feiyang Company failed to pay the purchase price, and Longjin Company sued the trading company to the court for payment of the purchase price. During the trial, the court of first instance added Feiyang Company as a co-defendant. After mediation, Feiyang Company paid 500,000 yuan for the goods, and the trading company was liable for the payment. Later, Feiyang Company was unable to pay, and Longjin Company applied to the court to enforce the property of the trading company according to the law. The court deducted 500,000 yuan from the trading company’s account. The trading company entrusted this lawyer to file a retrial, which lasted more than a year, and finally the court cancelled the mediation Book, the trading company does not need to pay 500,000 yuan to Longjin Company.

【Agent opinion】

1. After the cross-examination at the court hearing on October 26, 2004, the facts of the case were very clear: Feiyang Company bought a batch of canned food from Longjin Company in order to export a batch of canned food, and then entrusted a trading company to export it as an agent. The relationship between Longjin Company and Feiyang Company is a sales contract; Feiyang Company and the trading company have an export agency relationship, and there is no legal relationship between the trading company and Longjin Company.

Let’s take a look at the evidence submitted by Longjin Company in the original trial. The sales confirmation letter, the outbound goods inspection declaration form and the outbound goods customs clearance form have nothing to do with Longjin Company. Any export goods have the above export documents. There will be no and no record of who the trading company purchased the goods from. Therefore, these evidences can only prove that the trading company has gone through the export inspection and customs declaration formalities with the export authority, but cannot prove who the trading company buys goods from and with whom it has a buying and selling relationship. A written document that the operator declares to the competent export authority and accepts the supervision of the competent authority.

However, the value-added tax invoices issued by Longjin Company to the trading company cannot prove that the trading company purchased its goods. The trading company believes that the main method for judging the legal relationship between the parties is to interpret the contract. In the case of multiple possibilities, it is necessary to make a comprehensive judgment based on the performance behavior of the parties. Among them, various financial data generated by the financial processing of commercial activities by the parties during the performance of the contract should have certain probative force on the nature of the legal relationship due to its certain objectivity, but it should be inferior to the probative force of the contract text. .

The VAT invoice is only a link in the performance of the sales contract, and the VAT invoice cannot exclusively prove that the parties to the invoice are the parties to the sales contract. In the absence of a written contract between the buyer and the seller, in domestic trade, the VAT invoice can generally be used as proof of the sales contract. However, if the two parties have entered into a written contract or there is evidence to the contrary, a VAT invoice cannot be used to challenge a sales contract that fully reflects the true intentions of the parties.

In this case, the sales contract between Longjin Company and Feiyang Company submitted by the trading company proves that Longjin Company and Feiyang Company signed a sales contract. The contract number is FFC2004. The reminder letter proves that Longjin Company urged Yingming to demand the payment under the FFC2004 contract on July 16, 2004. The sales contract and the reminder letter fully prove that Longjin Company has business with Feiyang Company and has nothing to do with the trading company. relation.

The agency export agreement with Feiyang Company submitted by the trading company also proves that the trading company acts as an agent for Feiyang Company to export after Feiyang Company buys the goods. Agency and trading are two independent links.

To sum up, after the cross-examination at the court hearing on October 26, 2004, the facts of this case were very clear: Feiyang Company was the buyer of the sales contract in this case, the trading company had nothing to do with the sale, and Longjin Company sued the wrong object.

2. The original trial should have a clear understanding of the facts of the case after the cross-examination in the court hearing on October 26, 2004. However, due to the confusion of the original trial's understanding of the facts of the case and the unsympathetic grasp of the legal relationship, it violated the legal procedures and will Two unrelated and independent legal relationships, the sales contract and the agency contract, were incorporated into one litigation procedure, and Feiyang Company, which was not necessarily a joint lawsuit, was mistakenly added as a co-defendant, resulting in a major misunderstanding of the trading company and a mediation against its true will. express.

After the foregoing, the legal relationship in this case has become clear. The relationship between Longjin Company and Feiyang Company is a sales contract; Feiyang Company and the trading company are export agents; there is no legal relationship between the trading company and Longjin Company. The trading company is not a qualified defendant, and Longjin Company sued the wrong object. At this point of the trial, the original trial should explain and inform Longjin Company of the facts found out. Longjin Company decides whether to withdraw the lawsuit. If not, the original trial will dismiss the lawsuit. . However, the original trial erroneously added Feiyang Company as a co-defendant ex officio, which not only violated the basic principle of "don't tell the truth" in the Civil Procedure Law, but also violated the provisions of the Civil Procedure Law and the opinions on co-litigation. According to this regulation, only those who must conduct a joint lawsuit can the court add it ex officio. In this case, Feiyang Company is not a party that has to conduct a joint lawsuit. The joint defendant means that the two defendants will be jointly and severally liable. It was still added ex officio, which caused the trading company to misunderstand that it would be responsible for the payment of Longjin Company, and made a wrong mediation statement.

As for the procedural error in the original trial, even Longjin Company thought it was a mistake. Although the trading company did not raise an objection in the original trial, it did not mean to waive the right. According to Article 206 of the Supreme People's Court's Opinions on Several Issues concerning the Application of the Civil Procedure Law of the People's Republic of China and Article 179 of the Civil Procedure Law of the People's Republic of China The original court shall retrial and revoke the original mediation agreement.

3. The mediation of the first instance violated the provisions of Article 85 of the Civil Procedure Law, and failed to distinguish right from wrong and conduct mediation on the basis of clear facts. In the original trial, the facts of the two legal relations were written in a mediation book, and the fact-finding was confusing, and there was no distinction between right and wrong, and the mediation went straight, which led to misunderstanding by the trading company and agreed to mediation against its true will.

Article 85 of the Civil Procedure Law stipulates: "The people's court shall, in the trial of civil cases, conduct mediation according to the principle of the parties' voluntariness and on the basis of clear facts." This provision is the basic principle of mediation by the people's court. Mediation is different from reconciliation. Mediation is carried out under the auspices of the people's court. to demonstrate the authority of the judiciary. The original review of this case was correct, but the facts were not found, let alone the facts. The parties originally wanted to resolve disputes fairly and justly through litigation, but under the mediation of a court that commends fairness and impartiality, the trading company that has nothing to do with the case will be transferred The legal status of the company is equivalent to that of Feiyang Company, the real responsible person, so that the trading company that did not need to bear the responsibility should bear the responsibility. Such a mediation letter should be revoked.

4. The mediation of the original instance violated the provisions of paragraph 1 of Article 12 of the Provisions of the Supreme People's Court on Several Issues Concerning the Civil Mediation Work of the People's Court, and the people's court shall not confirm the mediation agreement that infringes upon the interests of the state.

The trading company is an enterprise owned by the whole people and has the obligation to maintain and increase the value of state-owned assets. However, under the mediation of the original trial, the trading company, a non-participant in the case, was held liable for compensation, which essentially caused the loss of state-owned assets. However, the procedural error of adding a co-defendant in the original trial and the violation of the basic principles of civil litigation mediation were the main reasons for the wrong mediation. As the agent of Longjin Company expressed in this trial, he believed: "After mediation in the original trial, Longjin Company made a concession of 190,000 yuan, and the responsibility of the trading company was reduced. If the responsibility of the trading company is aggravated, the mediation can be revoked. Book". The mediation of the original trial made the trading company that did not need to bear the responsibility to bear the responsibility and actually violated the legitimate rights and interests of the state. The mediation that violated the legitimate rights and interests of the state should not be confirmed in accordance with the law, and the confirmation should be revoked.

【Judgment Result】

The court of retrial ruled that the original judgment was revoked, and Longjin Company's claim against the trading company was dismissed.

【Judgment Document】

The court of retrial held that the trading company and Feiyang company have an export agency relationship, the trading company has fulfilled its obligations according to the export agency agreement, and the contract has been fulfilled. However, Feiyang Company and Longjin Company are in a sales contract relationship. Longjin Company sells goods to Feiyang Company, and Feiyang Company should pay the payment in full according to the agreement. Therefore, the Trading Company has no legal relationship with Longjin Company and should not be the defendant. In this case, Feiyang Company and Trading Company are not statutory co-defendants. Therefore, Feiyang Company should not be added as a co-defendant in this case. Due to a procedural error, Feiyang Company was added as a defendant, which caused misunderstandings in the Trading Company and led to the three parties reaching a mediation agreement, which made this The trading company that should bear any responsibility has assumed the responsibility for compensation, causing the loss of state-owned assets and harming the interests of the state, which is obviously illegal and should be corrected according to law, and the trading company's application for retrial should be supported.

To sum up, the court of retrial held that the retrial request of the trading company was established and supported. The judgment revokes the original judgment and dismisses Longjin's claim against the trading company.

【Case Analysis】

1. The voluntary principle of civil litigation mediation.

Mediation is different from reconciliation. Mediation is a way for people's courts to close cases. Mediation documents are enforceable. Mediation reflects the public power and dominant position of people's courts in civil litigation. According to the provisions of Article 85 of the Civil Procedure Law (the current Civil Procedure Law has been adjusted to Article 93), the people's courts try civil cases, according to the principle of the parties' willingness, on the basis of clear facts, to distinguish Right or wrong, mediate. It can be seen that mediation should follow the principle of "finding facts and distinguishing right from wrong". Only when mediation is carried out on the basis of "finding facts and distinguishing between right and wrong" can the parties correctly understand whether there is responsibility and the size of the responsibility, and can make real mediation correctly. The intention is to realize the principle of voluntary mediation. The mediation made by the trading company due to the unclear identification of some facts and the misunderstanding of the trade company essentially violated the principle of voluntary mediation, and the mediation agreement reached should be revoked.

The original trial procedure was wrong. Before Feiyang Company was added as the defendant, the trial was held and the evidence of both parties was cross-examined. According to the evidence provided by Longjin Company, the agency agreement signed by the trading company and Feiyang Company and the sales contract signed by Longjin Company and Feiyang Company are sufficient to determine that the buyer of the disputed goods is Biyang Company, and the trading company has nothing to do with the disputed payment. Feiyang Company is not necessary as a co-litigator. At this time, the court does not need to add Feiyang Company as a defendant, but should directly reject Longjin Company’s claim, inform the respondent that the defendant is not qualified, and file a separate lawsuit.

2. The impact of cross-acting in the performance of the foreign trade agency contract and the performance of the sales contract on the identification of the counterparty to the contract.

The trading company acted as an agent for Feiyang Company in the foreign trade process of the export of the goods involved, including applying for inspection in its own name, collecting foreign exchange, and submitting the VAT invoice to the tax authority for export tax refund on behalf of Feiyang Company. The applicant has transferred the tax refund to To Feiyang Company. These behaviors are all necessary procedures for the trading company and foreign businessmen and competent authorities (national tax, customs, commodity inspection, foreign management, etc.) for export business. They are normal foreign trade procedures and conform to trade practices. However, the buying and selling behavior between Longjin Company and Feiyang Company occurred in the domestic trade link before export, and the time limit between it and the export foreign trade agent is very obvious, and the buying and selling relationship between the two parties has nothing to do with trade.

The VAT invoice is only a link in the performance of the sales contract, and the VAT invoice cannot exclusively prove that the parties to the invoice are the parties to the sales contract. In the absence of a written contract between the buyer and the seller, in domestic trade, the VAT invoice can generally be used as proof of the sales contract. However, in this case, when the two parties have entered into a written contract or there is evidence to the contrary, a VAT invoice cannot be used to counter a sales contract that fully reflects the true intentions of the parties.

【Conclusion and Recommendations】

This case involves the determination that the principle of voluntary mediation is violated in civil litigation, and also involves the consideration of misunderstanding in mediation caused by procedural errors in civil litigation. In judicial practice, some mediations are conducted directly without ascertaining the facts, which may cause some parties to misunderstand and reach a mediation agreement. Therefore, in judicial practice, the provisions of Article 93 of the "Civil Procedure Law" should be followed, and the court should distinguish right from wrong and conduct mediation on the basis of the voluntary principle of the parties and on the basis of clear facts.

At the same time, it is also recommended that foreign trade companies clarify the counterparty of the contract during the operation process, and clarify their legal status, rights and obligations through tripartite agreements, back-to-back agreements, etc., so as to avoid unnecessary losses caused by confusion in legal status.