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BONING CASE

Fenghua a trading contract dispute case

1.Lawyer Litigation Case Template

Ⅰ. Case basic Information collection

Case Type:Cases of lawyers ' lawsuits                         

Business Type:Business Contract Litigation                            

Time of court decision:July 13, 2006                 

Name of court:Fenghua People's Court of Zhejiang province                   

Name of defence counsel:Yue Zhenhong                    

Name of law Firm:Zhejiang boning Law Firm           

Feeds (real name, Unit + names):                      

Peer review (real name, progressive):                            

Retrieving keywords:Contract of Sale and purchase  Conciliation of voluntary  Program error Co-defendants

  Ⅱ.Case Body Collection

  Fenghua a trading contract dispute case

  【Case Briefs】

  Flying company and can manufacturers Jinlong Gold signed a sale contract, agreed to fly the company to buy a batch of tin cans export, trading company and flying companies have entered into an export agency framework agreement, agreed by the trading company agent flying companies export goods to foreign countries, and receive foreign exchange, for tax refund and so on. Can export, Dragon Gold company should be flying company's instructions, issued value-added tax invoices to trading companies, after the company did not pay the purchase price, Dragon Gold Company to sue to the court, to request payment. In the trial, the first instance of the Court in accordance with the authority of the additional flying company as a joint defendant, by conciliation, by the flying company to pay 500,000 yuan, trading company for the payment of compensation liability. After flying companies unable to pay, Jinlong Gold Company to apply for the court compulsory enforcement trading Company's property, the court deducted the trading company's account funds 500,000 yuan, trading company entrusted to the lawyer to initiate a retrial, lasted more than a year, the final court revoked the conciliation book, trading company without paying 500,000 yuan to the company.

  【Defence comments】

 A. October 26, 2004, after the trial of the certificate, the facts of the case has been very clear: flying company for the export of a batch of cans, from the Dragon Gold company to buy cans, and then entrust the trading company to export agents. Dragon Gold Company and fly between the company is a contract relationship between the company and the trading company is the agent of export relations, trading company and the Dragon King has no legal relationship.

  Let's take a look at the evidence the company submitted in the trial, sales confirmation, outbound cargo inspection and outbound cargo customs clearance and the company has nothing to do with Dragon Gold, any export goods have the above-mentioned export documents, the contents of these documents will not have, and can not have a trading company to who purchase goods records. Therefore, these evidences can only prove that the trading company has handled export inspection and customs formalities to the export competent authorities, and has no proof to whom the trading company buys the goods or the trading relationship with them, in other words, such evidence is only a written document which the trading company declares to the export competent authority and receives the supervision of the competent authority.

  Dragon Gold Company to open to the trading company's value-added tax invoices can not prove that the trading company bought its goods, trading Company believes that the main way to judge the legal relationship between the parties is a literal interpretation of the contract, in the literal interpretation of a variety of possibilities, it is necessary to combine the performance of the parties to judge Among them, all kinds of financial information produced by the parties in the process of performing the financial treatment of the commercial activities, because of their objectivity, should have certain proving power to the nature of the legal relationship, but should be secondary to the proving power of the contract text.

  VAT invoice is only a part of the fulfillment of the contract of sale, and the VAT invoice cannot prove that the party of the invoice is the party of the contract of sale. In the absence of a written contract between the buyer and seller, in domestic trade, VAT invoices can generally be used as proof of contract of sale. However, in cases where the parties have entered into a written contract or evidence to the contrary, a VAT invoice cannot be used against the contract of sale that fully embodies the true meaning of the parties.

  In this case, the trading company submitted by the company and the flying companies to buy and sell the contract to prove the company and flying Company signed a sale contract, contract number FFC2004, trading Company submitted July 16, 2004 Jinlong Gold Company issued due to the letter of reminder letter to prove that the company on July 16, 2004 to Chengming urged FFC2004 under the contract, the purchase and sale contract and reminder letter fully proved that the company is with the flying company to buy and sell business, and trading companies have no relationship.

  Trading companies submitted with the flying Company's agent export agreement also proved that the trading company is in the flying companies to buy goods, Agent Flying company exports, agents and trading is two independent links.

  In summary, on October 26, 2004, after the trial of the certificate, the facts of the case has been very clear: Flying Company is the buyer of this case, trading companies and the sale has no relationship, the company said the wrong object.

  B. After the trial on October 26, 2004, should have a clear understanding of the merits of the case, however, because of the confusion of the original case knowledge, the grasp of the legal relationship, resulting in violation of the legal procedures, the sale of contracts, agency contracts two unrelated, independent legal relations into a lawsuit procedure, Wrongly appended to the joint action is not necessary for the company as a joint defendant, leading to a major misunderstanding of the trading company, made a resolution against the true will of mediation.

  After the foregoing, the legal relationship of the case has been clearly understood, the company and the flying Company is a contract between the sale of the relationship between the company and the trading company is the agent of export relations, trading companies and Jinlong Gold Company has no legal relationship. Trading Company is not suitable for the defendant, the company sued the wrong object, the trial, the original trial should be the interpretation, inform the Dragon Gold Company to ascertain the facts, by the company decided whether to withdraw the case, not withdrawn, then dismissed the prosecution. However, the original mistake of the original authority to add flying company as a joint defendant, not only violates the Civil Procedure Law "not to ignore" the basic principle, there is a sense of responsibility, at the same time violates the Civil Procedure Law and the opinions of the provisions of the joint action, according to the provisions, only those who must The court can only append to the authority, this case flying company is not a party to the joint action, the joint defendant means that the two defendants will bear joint and several liability, especially in the original trial has been the premise of the court, still in accordance with the terms of reference, make the trading company misunderstanding, mistakenly think that will be responsible for the money company's payment, And made the wrong conciliatory representations.

  For the trial of this procedure error, even the Dragon Gold company all think is wrong. Although the trading company did not raise objections in the original trial, but does not mean to waive the right, according to the Supreme People's Court on the application of the Law of Civil procedure of the views of the No. 206 and the "People's Republic of China's Civil Procedure Law," The 179th, the original court should be retried, the original.

  C. The trial mediation violates the provisions of the 85th of the Civil Procedure Law, and fails to distinguish between right and wrong on the basis of clear facts. In the first place, the facts of the two legal relations are written in a conciliation book, the facts are found to be confused, do not distinguish between right and wrong, direct mediation, resulting in misunderstanding of the trading company, contrary to the true will and agreed to mediate.

  85th of the Civil Procedure Law: "The People's Court in civil cases, according to the principle of voluntary parties, on the basis of the facts clearly, to distinguish between right and wrong, to mediate." This rule is the basic principle of the people's Court mediation, mediation is different from reconciliation, mediation is carried out under the auspices of the People's Court, embodies the intervention of judicial power and fairness, justice, only to find out the facts, distinguish between right and wrong after mediation, mediation can demonstrate the authority of the judiciary. The original case was examined in the facts, but the facts were not ascertained, not to mention the fact that the parties would have wanted to settle the dispute fairly and fairly through litigation, in recognition of fair and impartial court conciliation, the legal status of the trading company unrelated to the case would be equated with the real responsible person flying the company, so that the trade companies that did not need to bear responsibility , such a conciliation document should be revoked.

  D. The trial mediation violates the provisions of article 12th of the Supreme People's Court on several issues concerning civil mediation work of the peoples Court, and the People's Court does not confirm the conciliation agreement against the national interest.

  Trading Company is a state-owned enterprise, has the obligation to preserve and increase the value of national assets, however, under the auspices of the original trial, let trading company this non-case parties bear the liability, in essence caused the loss of state-owned assets, although the application of the agent signed a mediation book, However, the procedure error of adding the joint defendant and the violation of the basic principles of civil action are the main reasons for the wrong mediation. As the Zilongjin Company's agent in this trial's opinion, it said: "By the original mediation, Dragon Gold Company concession 190,000, the responsibility of the trading company eased, if the responsibility of the trading company increased, only can revoke the mediation book." The trial mediation let the trade company which did not have to bear the responsibility to bear the responsibility in essence violated the legal rights and interests of the country, the mediation against the legitimate rights and interests of the State should not be confirmed, the confirmation should be revoked.

  【Verdict Results】

  The retrial court judgment, the revocation of the original verdict, rejected the company's lawsuit request.

  【Referee Documents】

  The retrial court holds that the trading company is the export agent relationship with the flying companies, the trading company has fulfilled its obligation according to the discharging agent agreement, and the contract has been fulfilled. And Flying company and Dragon Gold Company is the sale contract relationship, Dragon Gold Company sold goods to fly company, flying company should be in accordance with the agreement to pay, so trading company and Dragon King without any legal relationship, should not be accused. In this case, flying companies and trading company is not a statutory joint defendant, so this case should not be added to the company as a joint defendant, due to the violation of the procedures of the company as the accused of the error, resulting in misunderstanding, leading to the three parties to reach a conciliation agreement, so that should not bear any responsibility of the trading company The loss of state-owned assets, damage to national interests, obviously illegal, should be corrected according to law, the company's retrial application should be supported.

  To sum up, the retrial court that the company's retrial request was established to support. The verdict revoked the original judgment and rejected the lawsuit request of the company.

  【Case analysis】

  A. The voluntary principle of civil litigation mediation.

  Mediation is different from conciliation, mediation as a way of settling the people's Court, mediation book has the enforcement power, mediation embodies the people's Court in the civil action of public power and dominant position. According to the provisions of the 85th of the Civil Procedure Law (the current Civil Procedure Law has been adjusted to the 93rd), the People's Court in civil cases, according to the principle of voluntary, on the basis of clear facts, distinguish between right and wrong, to mediate. It can be seen that mediation should follow the principle of "ascertaining facts, distinguishing right from wrong", and only by mediating on the basis of "ascertaining facts and distinguishing right from wrong", the parties will be able to correctly understand the responsibility and the size of responsibility, so as to correctly make the true mediation meaning, To achieve the voluntary principle of conciliation. Due to the fact that some of the facts are not clear, the mediation which leads to the mistaken understanding of the trading company essentially violates the voluntary principle of conciliation and the conciliation agreement thus reached should be revoked.

  The trial procedure was wrong, before the addition of the company as the accused, has been hearing, the evidence on both sides of the certificate. According to the evidence provided by the company, the company has signed the agency agreement with the flying companies and the contract signed by the company and the Flying company, which is sufficient to determine that the buyer of the disputed goods is a must yang company, and the trading company has nothing to do with the disputed money. Flying companies are not necessary joint litigants, at this time, the court does not need to add a flying company for the defendant, should directly dismiss the company's lawsuit request, informed that the respondent is not the subject of the applicant, a separate prosecution can be.

  B. The influence of cross action in the performance of Foreign trade agency contract and contract performance on the determination of contract counterpart.

  Trading Company is involved in the export of exports of foreign trade in the agent flying companies, including its own in the name of the inspection, collection of foreign exchange, value-added tax invoices submitted to the tax authorities on behalf of the company to handle the export tax refund, the applicant has transferred the tax refund to the flying company. These acts are trading companies and foreign and competent authorities (national tax, customs, commodity inspection, foreign pipe, etc.) for the export business of the necessary formalities, is the normal foreign trade formalities, in line with trade practices. And the company and the flying company between the sale of goods occurred in the export before the domestic trade links, and export foreign trade agent of the time limit is very clear, the two sides of the relationship and trade has no relationship.

  VAT invoice is only a part of the fulfillment of the contract of sale, and the VAT invoice cannot prove that the party of the invoice is the party of the contract of sale. In the absence of a written contract between the buyer and seller, in domestic trade, VAT invoices can generally be used as proof of contract of sale. In the present case, however, in the case of a written contract or evidence of the contrary, the parties could not use VAT invoices to counter the contract of sale that fully embodies the true meaning of the parties.

  【Conclusion and suggestion】

  This case involves the cognizance of violating the voluntary principle of conciliation in civil action, and also involves the misunderstanding of conciliation caused by procedural errors in civil litigation. In judicial practice, some mediation is directly mediated without ascertaining the facts, which may result in misunderstanding of some parties and reach a conciliation agreement. Therefore, the judicial practice, should follow the "Civil Procedure Law" 93rd, the court according to the principle of voluntary parties, on the basis of the facts clearly, to mediate.

 

  At the same time, it is also suggested that the foreign trade companies in the course of business clear the contract of the opposite party, through the tripartite agreement, back-to-back agreements and other forms of clear their legal status and rights and obligations, to avoid the confusion of legal status caused by unnecessary loss.

BONING CASE