- 中化国际（新加坡）有限公司诉蒂森克虏伯冶金产品有限责任公司国际货物买卖合同纠纷案(Sinochem International (Singapore) Co., Ltd. v. ThyssenKrupp Metallurgical Products Co., Ltd.)
- 浙江隆达不锈钢有限公司诉A.P.穆勒-马士基有限公司海上货物运输合同纠纷案 (Zhejiang Longda Stainless Steel Co., Ltd. v. AP Muller – Maersk Co., Ltd)
- 安徽省外经建设（集团）有限公司诉东方置业房地产有限公司保函欺诈纠纷案 (Anhui Foreign Economic Construction (Group) Co., Ltd. Dongfang Real Estate Co., Ltd)
- 交通运输部南海救助局诉阿昌格罗斯投资公司、香港安达欧森有限公司上海代表处海难救助合同纠纷案 (Nanhai Rescue Bureau of the Ministry of Transport v. Achang Gross Investment Co. Hong Kong Anda Ossen Co., Ltd. Shanghai Representative Office)
- 中国建设银行股份有限公司广州荔湾支行诉广东蓝粤能源发展有限公司等信用证开证纠纷案 (China Construction Bank Corporation Guangzhou Liwan Branch v. Guangdong Lan Yue Energy Development Co., Ltd. and other letters of credit issue dispute)
- 阿斯特克有限公司申请设立海事赔偿责任限制基金案 (Astek Co., Ltd. applied for the establishment of a maritime liability limitation fund case)
Wednesday, April 03, 2019
New Guiding Cases From China Relating to Belt and Road Initiative--Emerging Jurisprudence for a New Global Trade Regime?
(Pix Credit HERE)
Guiding cases have been issued by the Chinese Supreme People's COurt since 2011. The Guiding Cases, official summaries with rationales, are issued in accordance with provisions adopted by the SPC in 2010 that established a system of case guidance to aid judges in the disposition of cases. Though China is a civil law country, it was deemed necessary to aid in the exercise of interpretive function to provide a set of cases to guide interpretation. Guiding cases are to serve as a reference for judges when they adjudicate similar cases. Implementing regulations issued in 2015 require judges to refer to relevant guiding cases when adjudicating a claim which is deemed to fall within the "similar case" category. In such a case the judge is expected to reference the relevant guiding case for its persuasive reasoning rather than as binding precedent.
China has recently announced the issuance of a set of new guiding cases with relevance to Chinese approaches to the legal consequences of obligations of parties within the Belt and Road Initiative. The cases include the following (with links to official cite 仅限中文):
These guiding cases are important for two principal reasons. First they begin to flesh out the structures of implementation of the Belt and Road Initiative. And Second they begin to outline the principles and approaches to trade and trade dispute under the Chinese alternative vision of global trade. For both reasons the cases are an important element for companies and states involved in any aspect of BRI.
The full original text of the Guiding cases follow from the original Chinese website (仅限中文i), followed by a crude English translation (to give readers the gist). For further information or discussion, and case analysis, please contact Larry Catá Backer and Flora Sapio.-->
2019-02-25 11:12:24 | 来源：最高人民法院
Guidance Case No. 107
Sinochem International (Singapore) Co., Ltd. v. ThyssenKrupp Metallurgical Products Co., Ltd.
(Issued by the Supreme Court Judicial Committee discussed February 25, 2019)
2019-02-25 11:12:24 | Source: Supreme People's Court
1. The countries where the parties to the international sale of goods contracts are parties to the United Nations Convention on Contracts for the International Sale of Goods shall apply the provisions of the Convention in priority, and the provisions of the contract shall apply to the provisions of the contract. The parties to an international contract for the sale of goods shall expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods and shall not apply the Convention.
2. In the international sale of goods contract, although the goods delivered by the seller are defective, as long as the buyer can use the goods or resell the goods with reasonable efforts, it should not be regarded as a fundamental breach of contract under the United Nations Convention on Contracts for the International Sale of Goods. situation.
Article 145 of the General Principles of the Civil Law of the People's Republic of China
Articles 1 and 25 of the United Nations Convention on Contracts for the International Sale of Goods
April 11, 2008, Sinochem International (Singapore) Limited (hereinafter referred to as Sinochem Singapore) and ThyssenKrupp Metallurgical Products Co., Ltd. (hereinafter referred to as the German Krupp company) signed a purchase petroleum coke. " Procurement Contract, stipulates that this contract shall be concluded, governed and interpreted in accordance with the laws in force in New York State at the time. Sinochem Singapore paid the full amount of the contract , but the KGI index delivered by Krupp AG was only 32 , which is inconsistent with the typical HGI index of 36-46 as stipulated in the contract . Sinochem Singapore believes that Krupp AG has constituted a fundamental breach of contract and requested an order to terminate the contract, requiring the German Krupp company to return the purchase price and compensate for the loss.
According to the first instance of the Jiangsu Higher People's Court, according to the relevant provisions of the United Nations Convention on Contracts for the International Sale of Goods, the KGI index of the petroleum coke provided by Krupp AG is far below the contractual standards, which makes it difficult for petroleum coke to be sold in the domestic market. At the same time, the expected purpose of the merger could not be realized, so the behavior of the German Krupp company constituted a fundamental breach of contract. Jiangsu Provincial Higher People's Court (2009) Su Min San Chu Zi No. 0004 civil judgments in 2012, December 19: First, declare ThyssenKrupp Metallurgical Products Co., Ltd. and Sinochem International (Singapore) Limited April 11, 2008 signed the "purchase contract" null and void. Second, Japan ThyssenKrupp Metallurgical Products Co., Ltd. effective date of this decision within thirty days of the return of Sinochem International (Singapore) Ltd to pay the purchase price of $ 2,684,302.9 and self-determined payment of 25 September 2008 to this decision Interest on the day. 3. ThyssenKrupp Metallurgical Products Co., Ltd. compensated Sinochem International (Singapore) Co., Ltd. for loss of USD 520,339.77 within 30 days from the effective date of this judgment .
After the verdict was pronounced, the German Krupp Company refused to accept the judgment of the first instance and appealed to the Supreme People's Court, arguing that the first-instance judgment was wrong in applying the law to the case. The Supreme People's Court held that the facts of the first-instance judgment were basically clear, but some of the laws were incorrectly applied and the responsibility was improperly determined and should be corrected. Supreme People's Court (2013) Min Si Zhong Zi No. 35 civil judgments on June 30, 2014: First, remove Jiangsu Province Higher People's Court (2009) Su Min San Chu Zi No. 0004 civil judgments first. Second, change the Jiangsu Provincial Higher People's Court ( 2009 ) Su Min San Chu Zi No. 0004 Civil Judgment No. 2 for ThyssenKrupp Metallurgical Products Co., Ltd. to compensate Sinochem International within 30 days from the effective date of this judgment ( Singapore) Limited loan losses of $ 1,610,581.74 and paid from the date of payment of the September 25, 2008 to determine the interest of this judgment. III. Change of Jiangsu Higher People's Court ( 2009 ) Su Min San Chu Zi No. 0004 Civil Judgment No. 3 for ThyssenKrupp Metallurgical Products Co., Ltd. to compensate Sinochem International within 30 days from the effective date of this judgment ( Singapore) Co., Ltd. reserves a loss of $ 984,42.79 . 4. Dismissed other claims from Sinochem International (Singapore) Co., Ltd.
The Supreme People's Court held that this case is a dispute over international sales contracts, both parties are foreign companies, and the case has foreign-related factors. Article 2 of the Interpretation of the Supreme People's Court on the Application of the Law applicable to the Law of the People's Republic of China on Foreign-related Civil Relations (1): “The foreign-related civil relations that occurred before the implementation of the law applicable to foreign-related civil relations shall be relevant laws and regulations when foreign-related civil relations that should apply the law; when the law does not require to be determined by reference to the provisions of civil relations with foreigners law applicable to the "case involving the" purchase contract "was signed in 2008, April 11, at. Before the implementation of the Law of the People's Republic of China on the Application of Foreign-related Civil Relations Law, Article 145 of the General Principles of the Civil Law of the People's Republic of China when the parties sign the Purchase Contract states: “ The parties to a foreign-related contract may choose to apply the contract dispute. The law, unless otherwise stipulated by the law. If the parties to the foreign-related contract have no choice, the law of the country with the closest connection with the contract shall apply. "The parties in the case agreed in the contract that they should be concluded and governed according to the laws in force in New York State at the time. And explain that the agreement does not Anti law, shall be deemed valid. Since the countries in which the parties are located in Singapore and Germany are both parties to the United Nations Convention on Contracts for the International Sale of Goods, the United States is also a party to the United Nations Convention on Contracts for the International Sale of Goods, and both parties have consistently chosen to apply the United Nations International Sales of Goods during the trial. As a basis for determining its rights and obligations, the Contract Convention does not exclude the application of the United Nations Convention on Contracts for the International Sale of Goods. It is correct that the Higher People's Court of Jiangsu Province applied the United Nations Convention on Contracts for the International Sale of Goods to hear the case. Where there is no provision in the case concerning the handling of the case in the United Nations Convention on Contracts for the International Sale of Goods, the laws of the State of New York, selected by the parties, shall apply. The "Compilation of Case Laws of the United Nations Convention on Contracts for the International Sale of Goods" is not part of the United Nations Convention on Contracts for the International Sale of Goods and cannot be used as a legal basis for the trial of this case. However, it can be used as an appropriate reference in how to accurately understand the meaning of the relevant provisions of the United Nations Convention on Contracts for the International Sale of Goods.
The typical CGI index of the petroleum coke agreed by the parties in the “Procurement Contract” is between 36 and 46 , while the KGI index actually delivered by Krupp AG is 32 , which is lower than the typical value of the HGI index agreed by both parties . Value, does not meet the contractual agreement. The Jiangsu Higher People's Court found that the German Krupp Company constituted a breach of contract.
Whether the above-mentioned breach of contract by Krupp AG constitutes a fundamental breach of contract. First, from the content parties in the contract of the chemical and physical properties of petroleum coke must meet the specifications agreed see, damp rate contract petroleum coke, sulfur content, ash content, volatile matter content, size, heat, hardness (HGI Values) and other seven aspects have been agreed. From the current facts, Sinochem Singapore only believes that the HGI index does not meet the contractual agreement for the petroleum coke delivered by Krupp AG , but Sinochem Singapore has no objection to the other six indicators. In combination with the witness testimony submitted by the parties and the statement of the witness appearing in court, the HGI index indicates the grinding index of the petroleum coke. The lower the index, the greater the hardness of the petroleum coke and the more difficult the grinding. However, the statement issued by the School of Materials Science and Engineering of Shanghai University submitted by Sinochem Singapore does not deny that the petroleum coke with HGI index of 32 can be used, but only that its use is limited. Therefore, it can be concluded that although the petroleum coke HGI index does not conform to the contractual agreement, the petroleum coke still has value in use. Secondly, during the first trial of this case, Sinochem Singapore Company re-sold the petroleum coke through active efforts to reduce losses, and it clearly stated the petroleum coke in the letter to the German Krupp company. The resale price is “ not below the market reasonable price ” . This fact indicates that the petroleum coke can be sold at a reasonable price. Third, comprehensive consideration of the judgments of other countries on the basic breach of contract provisions of the United Nations Convention on Contracts for the International Sale of Goods, as long as the buyer can use the goods or resell the goods with reasonable efforts, or even make some discounts, the quality is not a fundamental breach of contract. . Therefore, it should be considered that the German Krupp company 's behavior of delivering a petroleum coke with an HGI index of 32 does not constitute a fundamental breach of contract. The Jiangsu Higher People's Court found that the German Krupp Company constituted a fundamental breach of contract and the judgment declared that the "purchase contract" was invalid, and the applicable law was wrong and should be corrected.
(Effective referee judges: Ren Xuefeng, Cheng Mingzhu, Zhu Ke)
2019-02-25 11:17:14 | 来源：最高人民法院
涉案货物于2014年7月12日左右到达目的港。马士基公司应隆达公司的要求于2015年1月29日向其签发了编号603386880的全套正本提单。根据提单记载，托运人为隆达公司，收货人及通知方均为VENUS STEEL PVT LTD，起运港中国宁波，卸货港科伦坡。2015年5月19日，隆达公司向马士基公司发邮件表示已按马士基公司要求申请退运。马士基公司随后告知隆达公司涉案货物已被拍卖。
Guidance Case No. 108
Zhejiang Longda Stainless Steel Co., Ltd. v. AP Muller – Maersk Co., Ltd.
(Issued by the Supreme Court Judicial Committee discussed February 25, 2019)
2019-02-25 11:17:14 | Source: Supreme People's Court
In the contract for the carriage of goods by sea , in accordance with the provisions of Article 308 of the Contract Law, the shipper has the right to request a change of the contract of carriage before the carrier delivers the goods to the consignee, but the parties still have to comply with Article 5 of the Contract Law. The prescribed principle of fairness determines the rights and obligations of the parties. When the shipper exercises this right, the carrier may also exercise a certain right of defense. If the change of the contract for the carriage of goods by sea is difficult to achieve or will seriously affect the normal operation of the carrier, the carrier may refuse the shipper's request to change the port or return the goods, but should promptly notify the shipper of the reasons for the change.
Article 308 of the Contract Law of the People's Republic of China
Article 86 of the Maritime Law of the People's Republic of China
June 2014, Zhejiang Lunda Stainless Steel Co., Ltd. (hereinafter referred to Lunda company) by the Ningbo Port China exports a number of stainless steel seamless product to the port of Colombo, Sri Lanka, customs value of the goods is $ 366,918.97. Lunda company by forwarding to the AP Moller - Maersk Co., Ltd. (hereinafter referred to as Maersk) booking, goods involved in the same year on June 28 loaded shipping containers shipped within 4, when the company shipped Lunda asked to do electrical discharge treatment . July 9, 2014, Lunda said the company e-mail to the company by Maersk freight forwarding, find the goods required to change the wrong destination or returned to Hong Kong. Maersk Company replied on the same day that it was unable to arrange for the change of port because the goods arrived at the port of destination less than 2 days. If it is necessary to return the goods, it must be confirmed with the destination port and then reply. On the next day, the freight forwarder of Ronda Company asked whether the goods could be returned to the original ship. Maersk Company replied on the same day that “the original ship returned is not operational. After the goods are unloaded at the port of destination, the current consignee needs to be at the port of destination. after customs clearance, local customs apply again returned after the approval of the customs, we can arrange matters returned. " July 10, 2014, Lunda company also proposed "to arrange for the goods returned, is not clear because the clearance, so it returned to Ningbo, there are other ways to do." Since then, Maersk has not responded to the mail.
Involved in cargo arrival at destination in about July 12, 2014. Maersk should Lunda requirements of the company in January 29, 2015 numbered 603,386,880 issued its full set of original bills of lading. According to the bill of lading, the shipper is Ronda, the consignee and the notifying party are VENUS STEEL PVT LTD , the port of departure is Ningbo, China, and the port of discharge is Colombo. May 19, 2015, the company Lunda mail, Maersk Line has been told by Maersk require the applicant returned. Maersk then informed Ronda that the goods involved in the case had been auctioned.
Ningbo Maritime Court (2015) Ningbo Haifa Shang Chu Zi No. 534 civil judgments on March 4, 2016, that the Lunda company for its own delivery and other effective measures are not taken to be auctioned goods involved lead to customs, the corresponding risk of cargo damage should The company assumed that the claim of Ronda Company was rejected. After the judgment of the first instance, Ronda filed an appeal. Zhejiang Higher People's Court on September 29, 2016 to (2016) Zhe Min Zhong No. 222 civil judgments: verdict revoked; Maersk company on the date of service of the decision within ten days Lunda company for damages of $ 183,459.49 goods and interest. The court of second instance held that according to Article 308 of the Contract Law, Longda Company had the right to request to change port or return shipment before Maersk Company delivered the goods. After the company submitted the return request, Maersk Company did not expressly refuse to arrange the return shipment, nor did it notify Ronda to handle it by itself. It should bear the corresponding liability for the damage caused by the case, and the discretionary responsibility ratio is 50% . Maersk Company refused to accept the judgment of the second instance and applied to the Supreme People's Court for retrial. Supreme People's Court on December 29, 2017 (2017) and then up to France and China No. 412 civil judgment: revocation of a second trial; upheld the verdict.
The Supreme People's Court held that the provisions of the Contract Law and the Maritime Law relating to the adjustment of maritime transport relations and ship relations are the relationship between common law and special law. According to the provisions of Article 89 of the Maritime Law, the shipper may request the termination of the contract before the ship sails at the port of loading. In this case, Longda Company requested the carrier to return or change the port during the maritime transport of the goods involved. Since the maritime law does not stipulate the shipper’s right to change the contract of carriage in the voyage, the contract law can be applied to the third hundred and zero. Eight provisions concerning the shipper’s request to change the rights of the contract of carriage. Based on the basic principles of the law applicable to the common law, the special law applies in Article 308 of the Contract Law. This article stipulates that in the case of a contract for the carriage of goods by sea, it should be subject to the basic value orientation of the maritime law. And mandatory restrictions. The shipper’s right to change the contract of carriage in accordance with Article 308 of the Contract Law shall not result in the unfairness of the interests of the parties in the contract of carriage of goods by sea, nor shall the carrier violate the obligation to arrange reasonable routes to other shippers, Or deprive the carrier of the corresponding right of defense to perform changes to the contract of carriage of goods by sea.
The basic principle stipulated in the general provisions of the contract law is the standard of contract law legislation, which is the standard applicable to all areas of contract law, and also the basis for the specific system and norms of contract law. According to Article 308 of the Contract Law, the shipper has the right to request a change of the contract of carriage before the carrier delivers the goods to the consignee, but the parties still have to follow the fairness principle stipulated in Article 5 of the Contract Law. Party's rights and obligations. Sea cargo transportation has special characteristics such as large transportation volume, pre-planned voyage, and relatively fixed routes. Shippers' requests for port change or return are sometimes not only difficult to operate, but also hinder the normal operation of the carrier or ship to other cargoes or The consignee brings greater damage. In this case, it is unfair if the carrier is required to unconditionally obey the shipper’s request to change the contract of carriage. Therefore, under the contract of carriage of goods by sea, the shipper is not entitled to exercise the right to request a change without restriction, and the carrier is not in any case unconditionally obeying the shipper’s request for a change. In order to reasonably balance the interests of the parties in the contract of carriage of goods by sea, the carrier also has a certain right of defense while the shipper exercises the right to change the requirements. If the change of the transportation contract is difficult to achieve or will seriously affect the carrier's normal operation, the carrier may refuse the shipper's request to change the port or return the goods, but should promptly notify the shipper of the reasons for the failure to perform. If the carrier’s defense against the failure to enforce the cause is established, the carrier’s failure to comply with the shipper’s instructions to return or change the port is not inappropriate.
The goods involved in the case were transported by international liners. In addition to carrying the four containers consigned by Ronda, the cargo ships carried a large number of goods consigned by other cargo owners. Goods involved in the June 28, 2014 on board the ship to reach the port of destination in about July 12, 2014. Lunda company on July 9, 2014 before the company returned or changed requirements Maersk Hong Kong. Maersk has been in the voyage for more than half of the time. It only takes two or three days to reach the destination port. It is impossible to arrange for the change of the port due to the voyage and other reasons. The original ship is returned without operationality. It is in line with the facts of the case. The defense was established. Maersk It is not inappropriate for the company not to arrange for a return or change to Hong Kong.
After Maersk Company transported the goods involved to the port of destination, the unloading of the goods to the port of destination was carried out in accordance with the provisions of Article 86 of the Maritime Law. Maersk on July 9, 2014 reply from the company arrived at the port of destination Lunda less than the 2nd through the mail. Ronda has been aware of the general time of arrival of the goods and knows that the goods involved are not picked up at the port of destination, but did not take measures to deal with the goods involved in the case for up to eight months to be auctioned by the customs. Although Ronda has claimed that Maersk has not fulfilled its cautious obligation to manage the goods, it has not proved that Maersk has the fact that the goods are improperly handled. Ronda’s claim is unfounded. According to the provisions of Article 86 of the Maritime Law, the costs and risks incurred by Maersk Company after unloading shall be borne by the consignee, and Maersk shall not bear the corresponding risks as the carrier.
(Effective judges: Wang Shumei, Yu Xiaohan, Huang Xiwu)
2019-02-25 11:19:21 | 来源：最高人民法院
《施工合同》履行过程中，2012年1月23日，建筑师 Jose Brenes和Mauricio Mora出具《项目工程检验报告》。该报告认定了施工项目存在“施工不良”“品质低劣”且需要修改或修理的情形。2012年2月7日，外经中美洲公司以东方置业公司为被申请人向哥斯达黎加建筑师和工程师联合协会争议解决中心提交仲裁请求，认为东方置业公司拖欠应支付之已完成施工量的工程款及相应利息，请求解除合同并裁决东方置业公司赔偿损失。2月8日，东方置业公司向哥斯达黎加银行提交索赔声明、违约通知书、违约声明、《项目工程检验报告》等保函兑付文件，要求执行保函。2月10日，哥斯达黎加银行向建行安徽省分行发出电文，称东方置业公司提出索赔，要求支付G051225号银行保函项下2008000美元的款项，哥斯达黎加银行进而要求建行安徽省分行须于2012年2月16日前支付上述款项。2月12日，应外经中美洲公司申请，哥斯达黎加共和国行政诉讼法院第二法庭下达临时保护措施禁令，裁定哥斯达黎加银行暂停执行G051225号履约保函。
根据《最高人民法院关于贯彻执行〈中华人民共和国民法通则〉若干问题的意见（试行）》第六十八条的规定，欺诈主要表现为虚构事实与隐瞒真相。根据再审查明的事实，哥斯达黎加银行开立编号为G051225的履约保函，该履约保函明确规定了实现保函需要提交的文件为：说明执行保函理由的证明文件、通知外经中美洲公司执行保函请求的日期、保函证明原件和已经出具过的修改件。外经集团公司主张东方置业公司的行为构成独立保函项下的欺诈，应当提交证据证明东方置业公司在实现独立保函时具有下列行为之一：1.为索赔提交内容虚假或者伪造的单据；2.索赔请求完全没有事实基础和可信依据。本案中，保函担保的是“施工期间材料使用的质量和耐性，赔偿或补偿造成的损失，和／或承包方未履行义务的赔付”，意即，保函担保的是施工质量和其他违约行为。因此，受益人只需提交能够证明存在施工质量问题的初步证据，即可满足保函实现所要求的“说明执行保函理由的证明文件”。本案基础合同履行过程中，东方置业公司的项目监理人员Jose Brenes和Mauricio Mora于2012年1月23日出具《项目工程检验报告》。该报告认定了施工项目存在“施工不良”、“品质低劣”且需要修改或修理的情形，该《项目工程检验报告》构成证明存在施工质量问题的初步证据。
本案当事方在《施工合同》中以及在保函项下并未明确约定实现保函时应向哥斯达黎加银行提交《项目工程检验报告》，因此，东方置业公司有权自主选择向哥斯达黎加银行提交“证明执行保函理由”之证明文件的类型，其是否向哥斯达黎加银行提交该报告不影响其保函项下权利的实现。另外，《施工合同》以及保函亦未规定上述报告须由AIA国际建筑师事务所或者具有美国建筑师协会国际会员身份的人员出具，因此，Jose Brenes和Mauricio Mora是否具有美国建筑师协会国际会员身份并不影响其作为发包方的项目监理人员出具《项目工程检验报告》。外经集团公司对Jose Brenes和Mauricio Mora均为发包方的项目监理人员身份是明知的，在其出具《项目工程检验报告》并领取工程款项时对Jose Brenes和Mauricio Mora的监理身份是认可的，其以自身认可的足以证明Jose Brenes和Mauricio Mora监理身份的证据反证Jose Brenes和Mauricio Mora出具的《项目工程检验报告》虚假，逻辑上无法自洽。因外经集团公司未能提供其他证据证明东方置业公司实现案涉保函完全没有事实基础或者提交虚假或伪造的文件，东方置业公司据此向哥斯达黎加银行申请实现保函权利具有事实依据。
Guidance Case No. 109
Anhui Foreign Economic Construction (Group) Co., Ltd.
Dongfang Real Estate Co., Ltd.
(Issued by the Supreme Court Judicial Committee discussed February 25, 2019)
2019-02-25 11:19:21 | Source: Supreme People's Court
1. When it is determined that the formation of an independent letter of guarantee fraud requires review of the underlying transaction, the principle of limitation and necessity should be adhered to. The scope of the examination should be limited to whether the beneficiary knows that the counterpart of the underlying contract does not have the fact of default under the underlying contract and whether there is any benefit. People know that they do not have the right to request payment.
2. The default situation of the beneficiary under the basic contract does not affect its right to submit documents and make claims in accordance with the provisions of the independent guarantee.
3. If there is any fraud under the independent counter-guarantee letter, even if the independent guarantee has a fraudulent situation and the payment is made in good faith under the independent guarantee, the people's court may not decide to stop the payment under the independent counter-guarantee letter.
Articles 8 and 44 of the Law of the People's Republic of China on the Application of Foreign-related Civil Relations Law
January 16, 2010, Oriental Land Real Estate Co., Ltd. (hereinafter referred to as the Oriental Land Company) as a developer, and Anhui Foreign Economic Construction as the contractor (Group) Co., Ltd. (hereinafter referred to as Foreign Economic Corporation), as the construction side Anhui Foreign Economic Construction Central America Co., Ltd. (hereinafter referred to as the Foreign Economics Central America Company) signed the “Construction Contract for the Costa Rica Lakeside Project” (hereinafter referred to as the “Construction Contract”) in San Jose, Costa Rica, stipulates that the contractor is three Construction of a 14-storey mixed commercial and residential building. Foreign Economic Corporation on May 26, 2010 to Anhui Branch of China Construction Bank Corporation (hereinafter referred to as CCB Anhui Branch) apply, and transfer to the Bank of Costa Rica as the opening line to the company as a beneficiary of the Oriental Land opened compliance The letter of guarantee is guaranteed to be the Huafu project on the shores of Costa Rica. May 28, 2010, the Costa Rican bank to open a number G051225 performance bond, the guarantor for the Anhui Branch of China Construction Bank, the principal is a foreign economic company, the beneficiary Oriental Land Company, the guarantee amount of $ 2.008 million, valid until October 2011 12, after postponed to February 12, 2012. Letter of guarantee: Unconditional, irrevocable, mandatory, pay-as-you-go guarantee. The execution of this letter of guarantee requires the beneficiary to submit two copies of the supporting documents to the Ministry of Foreign Trade of the Central Office of the Bank of Costa Rica, indicating the reasons for the execution of the letter of guarantee, and the beneficiary’s notarized statement states that the request was notified to the foreign Central American company for breach of contract. Date, accompanied by a letter of guarantee and an amendment that has been issued. CCB Anhui Branch also issued a counter-guarantee letter numbered to the Bank of Costa Rica with the number 341-47020000289 , and promised to pay the amount under the guarantee within 20 days after receiving the notice from the Costa Rican bank. Counter guarantee is "unconditional, irrevocable, at any time asked to pay" and agreed "to comply with the International Chamber of Commerce Publication No. 458" Uniform Rules for Demand Guarantees "."
"Construction Contract" fulfillment process, January 23, 2012, the architect Jose Brenes and Mauricio Mora issued "project inspection reports." The report identified a situation where the construction project had “ poor construction ” and “ poor quality ” and needed to be modified or repaired. February 7, 2012, foreign companies to the Central American Oriental Land Company to be submitted to arbitration request the applicant to the Joint Association of Engineers and Architects of Costa Rica Dispute Resolution Center, the Oriental Land Company believes arrears should be paid the amount of construction has been completed for the works And the corresponding interest, request to terminate the contract and ruling the Oriental Real Estate Company to compensate for the loss. February 8, Oriental Land Company of Costa Rica submitted to the bank statement of claim, notices of default, breach of contract statement, "project inspection reports" and other guarantees payment documents, required to perform guarantee. February 10, Costa Rica Bank issued a message to China Construction Bank branch in Anhui, said the Oriental Land Company filed a claim payments 2.008 million US dollars under G051225 No. Bank Guarantee, Costa Rica Bank then asked the CCB Anhui Branch to be on February 16, 2012 The above payment was made a few days ago. February 12, the company should apply for foreign economic relations in Central America, the Administrative Court of the Republic of Costa Rica second lawsuit the court to order interim measures of protection injunction, ruled that Costa Rica banks to suspend the implementation of resolution G051225 performance bond.
February 23, Foreign Economic Corporation filed a lawsuit to guarantee fraud dispute Hefei Intermediate People's Court, No. G051225 apply for suspension of payment guarantees, payments under number 34147020000289 Guarantee. Court of First Instance on 27 February made (2012) co-Min Si Chu Zi No. 00005-1 ruled that ruling to suspend payments under guarantees and No. G051225 number 34147020000289 Guarantee, and on February 28 to reach the Anhui Branch of China Construction Bank The above ruling. February 29, China Construction Bank branch in Anhui send the message to the Bank of Costa Rica informed the Court of First Instance ruled that the subject has been made on the same day sent a copy of the above ruling to the bank in Costa Rica, Costa Rican bank receipt of the above on March 5 A copy of the ruling.
March 6, Administrative Litigation Court of the Republic of Costa Rica in Central America second court foreign economic relations company to apply preventive measures lost, the lifting of the ban on interim measures of protection. March 20, at the request of Costa Rica Bank, China Construction Bank branch in Anhui extended the expiration date of the guarantee number 34147020000289. March 21, the Costa Rican bank paid the money under the number G051225 Guarantee to the east property companies.
July 9, 2013, the Costa Rican Association of architects and engineers to make a joint arbitration award, the arbitral award recognized the Oriental Land Company in the execution of this serious breach of contract, and the decision to terminate "construction contract", Oriental Land Company to foreign economic relations in Central America the company paid Nos. 1 to 18 project progress payments totaling $ 800,058.45 plus interest; No. 19 project developers for failing to obtain acceptance for projects related to failing to support the request; due to the lower number G051225 guarantee payment had been made, it does not support foreign economic relations in The request of the American company to return the guarantee.
Hefei Intermediate People's Court (2012) co-Min Si Zi No. 00005 civil judgments on April 9, 2014: First, the Oriental Land Company acts constitute fraud claims against No. G051225 Performance Bond; Second, China Construction Bank in Anhui Province The branch terminated the payment of $ 2008000 under the bank guarantee number number 3414702000028 to the Costa Rican bank ; 3. Dismissed other claims from the foreign economic group company. Dongfang Real Estate Co., Ltd. refused to accept the judgment of the first instance and filed an appeal. Anhui Provincial Higher People's Court on March 19, 2015 (2014) Wan Min Er Zhong Zi No. 00389 civil judgments: rejected the appeal and upheld the original verdict. Dongfang Real Estate Co., Ltd. refused to accept the judgment of the second instance and applied to the Supreme People's Court for retrial. Supreme People's Court (2017) and then up to France and China Civil Judgment No. 134 on December 14, 2017: First, remove Anhui Province Higher People's Court (2014) Wan Min Er Zhong Zi No. 00389, Hefei Intermediate People's Court ( 2012 ) He Min Si Chu Zi No. 00005 Civil Judgment; Second, dismiss the foreign company's litigation request.
The Supreme People's Court held that: First, the identification basis, jurisdiction and application of the law regarding the independent letter of guarantee fraud cases involved in this case. The parties to the dispute in this case, Dongfang Real Estate Co., Ltd. and Costa Rica Bank’s permanent residence are located outside the country. This case is a foreign-related commercial dispute. According to Article VIII "foreign-related civil relations law applicable to the People's Republic of China," "qualitative civil relations with foreigners, the court shall apply the law" provisions, foreign group companies as foreign economic relations in Central America in the country of the parent company, is involved in the undertaking The applicant was opened, and the application for the CCB Anhui Branch opened a pay-as-you-go anti-guarantee letter to the Costa Rican bank, and the Costa Rican bank transferred the performance bond to the beneficiary Oriental Real Estate. According to the text of the letter of guarantee, the payment obligations of the Bank of Costa Rica and the Anhui Branch of CCB are independent of the basic transaction relationship and the legal relationship of the letter of guarantee application. Therefore, the above guarantee can be determined as a pay-as-you-go independent guarantee. The above-mentioned counter-guarantee guarantee can be determined as a reference. Pay the independent counter-guarantee letter. The foreign economic group company filed a lawsuit in the court of first instance on the grounds of letter of guarantee fraud. The nature of the case was a letter of credit fraud. The independent counter-guarantee letter requested to be stopped shall be issued by the CCB Anhui Branch, and the location of the branch shall be deemed to be the place where the infringement result claimed by the foreign economic group company. The court of first instance as the court of infringement has jurisdiction over the case. As the letter of guarantee in the case states that the Uniform Rules for Pay-As-You-Go Protection Letters shall apply, it shall be determined that the contents of the above-mentioned rules constitute an integral part of the dispute guarantee. According to Article 44 "foreign-related civil relations law applicable to the People's Republic of China," "Tort Liability, applicable to tort law" provides the "Uniform Rules for Demand Guarantees" bond fraud involved were not identified criteria should be applied laws of People's Republic of China. China has not acceded to the UN Convention on Independent Guarantees and Standby Letters of Credit. The parties to this case have not agreed to apply the above-mentioned conventions or to include the relevant contents of the Convention as a letter of guarantee for international transactions. According to the principle of autonomy of will, the UN Convention on Independent Guarantees and Standby Letters of Credit. Should not be applied.
Secondly, whether Dongfang Real Estate Co., Ltd. as a beneficiary has prima facie evidence under the basic contract proves that its claim has a factual basis.
When the people's court hears the independent guarantee letter and the counter-guarantee case related to the independent guarantee, the review of the basic transaction shall adhere to the limited principle and the necessary principle. The scope of the review shall be limited to whether the beneficiary knows that the relative person of the basic contract does not have a basic contract. The fact of default under the item or the fact that there is no other payment resulting in the independent guarantee. Otherwise, a review of the underlying contract will shake the system value independent bond "first demand" in.
According to Article 68 of the Supreme People's Court's Opinions on the Implementation of the General Principles of the Civil Law of the People's Republic of China (Trial), fraud is mainly manifested in fictional facts and concealing the truth. According to the facts of the re- examination , the Bank of Costa Rica opened a performance bond numbered G051225 , which clearly stated that the documents required to be submitted for the realization of the letter of guarantee were: a document indicating the reasons for the execution of the letter of guarantee, and a notification to the Central American company to execute the letter of guarantee request. The date, the original of the letter of guarantee and the amendments that have been issued. Foreign Economic Corporation proposition East Property's conduct constituted fraud under separate Guarantee shall submit evidence of Oriental Land Company has one of the following acts when independence guarantees: 1. the claim submission of false or forged documents; 2. The claim is completely unfounded and credible. In this case, the guarantee guarantees “ the quality and patience of the materials used during the construction period, the losses caused by compensation or compensation, and/or the failure of the contractor to perform the obligations ” , which means that the guarantee guarantees the construction quality and other breach of contract. Consequently, the beneficiary simply submit preliminary evidence to prove the existence of construction quality problems, to meet the guarantee to achieve the required "documents executed instructions Guarantee reason." Case basis for performance of the contract, the Oriental Land Company's project supervisors Jose Brenes and Mauricio Mora on January 23, 2012 issued "project inspection reports." The report identified the construction project as “ poor construction ” and “ poor quality ” and required modification or repair. The “Project Engineering Inspection Report” constitutes prima facie evidence of the existence of construction quality problems.
The parties in this case should submit the “Project Engineering Inspection Report” to the Costa Rican Bank in the “Construction Contract” and under the guarantee letter. Therefore, Dongfang Real Estate Co., Ltd. has the right to submit “ certification execution ” to the Costa Rican Bank. type bond reasons "of supporting documents, whether to submit the report to the Bank of Costa Rica does not affect the realization of the rights of its guarantee. In addition, the Construction Contract and the letter of guarantee do not stipulate that the above report must be issued by AIA International Architects or an international member of the American Institute of Architects. Therefore, whether Jose Brenes and Mauricio Mora have the International Membership of the American Institute of Architects It does not affect the project supervision report issued by the project supervision personnel as the contractor. Foreign Economic Corporation of Jose Brenes and Mauricio Mora are the Employer project supervisors identity is knowingly, when it issued "project inspection reports," and receive project funds and supervision of Jose Brenes identity Mauricio Mora is recognized, evidence which is sufficient to prove itself recognized Jose Brenes and Mauricio Mora supervision of the identity of evidence to the contrary Jose Brenes and Mauricio Mora issued a "project inspection report" false, can not logically self-consistent. Because the foreign economic group company failed to provide other evidence to prove that Dongfang Real Estate Co., Ltd. has no factual basis or submitted false or forged documents, the Oriental Real Estate Company has a factual basis for applying to the Costa Rican Bank for the realization of the guarantee.
In summary, the "Project Engineering Inspection Report" constitutes the prima facie evidence of the breach of contract under the basic contract of the foreign economic group company. The evidence provided by the foreign economic group company is insufficient to prove that the above report is false or forged, and it is not enough to prove that Dongfang Real Estate Co., Ltd. knows The counterparty of the underlying contract does not have the fact of default under the underlying contract or does not have other facts that result in the payment of the independent guarantee. Based on the breach of contract under the basic contract of Foreign Economic Group Corporation, Dongfang Real Estate Co., Ltd., according to the provisions of the contract, proposes that the realization of the rights under the independent guarantee does not constitute a letter of guarantee fraud.
Third, whether the default situation under the basic contract of the beneficiary of the independent letter of guarantee will necessarily constitute a fraudulent payment under the independent guarantee.
Foreign Economic Group believes that according to Article 12, Item 3, Item 4 and Item 5 of the Supreme People's Court Regulations on Several Issues Concerning the Trial of Independent Guarantee Letter Disputes (hereinafter referred to as the Judicial Interpretation of the Independent Guarantee Letter), Dongfang Real Estate Co., Ltd. The company constitutes an independent letter of fraud. According to the provisions of Article 25 of the judicial interpretation of the independent guarantee, the court explained that the foreign economic group company still insisted that the handling of this case should not violate the spirit of the judicial interpretation of the independent guarantee. In conjunction with the claims of the Foreign Economic Group Corporation, the Supreme People's Court further explained the relevant issues concerning the judicial interpretation of the independent guarantee.
The independent guarantee is independent of the basic transaction between the principal and the beneficiary. The bank issuing the independent guarantee is only responsible for reviewing whether the documents submitted by the beneficiary meet the requirements of the terms of the guarantee and have the right to decide whether to pay or not. The guarantee obligation of the guarantee bank is not entrusted. The impact of the right of defense under the underlying transaction between the person and the beneficiary. As a beneficiary, Orient Real Estate Co., Ltd., when submitting prima facie evidence of the existence of engineering quality problems, does not affect the realization of its letter of guarantee rights even if it does not initiate any dispute resolution procedures such as litigation or arbitration and confirms the breach of contract by the above procedures. Even if there is an ongoing litigation or arbitration procedure in the underlying contract, as long as the relevant dispute resolution procedure has not yet made the final determination of the underlying transaction debtor's failure to pay or compensation, it does not affect the realization of the beneficiary's guarantee right. In other words, even if the effective judgment or arbitral award determines that the beneficiary constitutes a breach of contract under the underlying contract, the existence of the fact of default does not necessarily constitute a sufficient and necessary condition for the “ fraud ” of the letter of guarantee .
In this case, the guarantee of the guarantee is the quality of construction and other breach of contract, and there is no logical causal relationship between the fact of default of the beneficiary's failure to pay the project and the quality of the project. Dongfang Real Estate Co., Ltd. as the beneficiary, its own underlying contract The breach of contract in the performance does not necessarily constitute a fraudulent claim under the independent guarantee. The independent protection letter judicial interpretation of the provisions of Article 12, paragraph 3, the conditions for the identification of the independent guarantee fraud is limited to "the court judgment or arbitral award determines that the underlying transaction debtor has no payment or liability " , therefore, unless otherwise agreed in the letter of guarantee,基础合同的审查应当限定在保函担保范围内的履约事项，在将受益人自身在基础合同中是否存在违约行为纳入保函欺诈的审查范围时应当十分审慎。 Although the Costa Rican Association of United Architects and engineers make an arbitral award, the Oriental Land Company finds breach of contract during the performance of the contract, but these arbitration proceedings in 2012 Nian 2 Yue 7 launch date by the Foreign Economic Corporation, Oriental Land Company did not make a counterclaim , 2013 Nian 7 Yue 9 arbitration day made the decision only finds Oriental Land company for breach of the company's request for foreign economic issues, but not recognized by the presence of Foreign Economic Corporation and other breach of payment or exempt from liability. Therefore, it cannot be determined according to the content of the above arbitral award that Dongfang Real Estate Co., Ltd. constitutes the letter of guarantee fraud under Article 12, Paragraph 3 of the Judicial Interpretation of the Independent Guarantee.
In addition, the facts of the dispute between the two parties on the quality of the project and the statement on the quality of the project in the Arbitration Award made by the Center for Dispute Resolution of the Association of Architects and Engineers of Costa Rica can be corroborated by the Foreign Construction Central American Company in the Construction Contract. The obligations under it have not been fully fulfilled. In this case, there is no situation in which Dongfang Real Estate Co., Ltd. confirms that the underlying transaction debt has been fully fulfilled or that the payment due event has not occurred. The existing evidence also does not prove that Orient Real Estate Company knows that it has no right to pay and still abuses its rights. As a beneficiary, Dongfang Real Estate Co., Ltd., its own breach of contract in the performance of the basic contract, although confirmed by the arbitral award, did not exempt the group company from payment or liability. In summary, even if the judicial interpretation of the independent guarantee letter is applied in accordance with the claim of the foreign economic group company, the case does not constitute a letter of guarantee fraud.
Fourth, regarding the issue of the independent counter-guarantee letter related to the independent guarantee in this case.
Based on the characteristics of the independent guarantee, the guarantor constitutes the direct payment responsibility to the beneficiary outside the debtor, and there is no right of defense between the independent guarantee and the main debt, even if the debtor exercises the right of defense in a dispute resolution procedure, and It does not of course give the independent guarantor the benefit of the defence. In addition, even if there is a fraudulent claim by the beneficiary under the independent guarantee, it cannot be presumed that the guarantee bank constitutes a fraudulent claim under the independent counter-guarantee letter. Only when the guarantee bank knows that the beneficiary is fraudulent and pays in violation of the principle of good faith, and asserts the amount under the independent counter-guarantee letter to the counter-guarantee bank, can the secured bank constitute a fraudulent claim under the independent counter-guarantee letter.
The foreign economic group company filed the lawsuit on the grounds of letter of guarantee fraud, which should prove that the Costa Rican bank knew that there was an independent letter of guarantee fraud in the case of Dongfang Real Estate Co., Ltd., and still paid in violation of the principle of good faith, and then acted as a beneficiary to pay for the independent counter-guarantee. A request for a claim is made under the letter and constitutes a fraudulent claim under the counter-guarantee letter. At present, the foreign economic group company can not only prove that the Costa Rican bank has fraudulently paid the amount of the independent guarantee letter to the Oriental Real Estate Company, nor has it proved that the Costa Rican bank has fraudulent claims under the independent counter-guarantee letter, and its claim to stop the independent counter-guarantee. There is no factual basis for the amount under the letter.
(Effective referee judges: Chen Jizhong, Yang Honglei, Yang Xingye)
2019-02-25 11:21:12 | 来源：最高人民法院
Guidance Case No. 110
Nanhai Rescue Bureau of the Ministry of Transport v. Achang Gross Investment Co.,
Hong Kong Anda Ossen Co., Ltd. Shanghai Representative Office
Shipwreck rescue contract dispute
(Supreme People's Court Judicial Committee discussed and approved 2019 Nian 2 Yue 25 release date)
2019-02-25 11:21:12 | Source: Supreme People's Court
1. " 1989 International Convention on Salvage," and our maritime salvage contract provisions " no cure no pay " , but allows the determination of both parties to a salvage reward can be agreed. If the parties expressly agree that the rescued party shall pay remuneration regardless of whether the rescue is successful or not, and that the rescued ship’s horsepower per hour and labor input are used as the standard for calculating remuneration, the contract is a employment assistance contract instead of the above-mentioned international conventions and China. A bailout contract stipulated by the Maritime Law.
2. In the case that the International Convention on Relief in 1989 and the Maritime Law of China have no specific provisions on employment assistance contracts, the relevant provisions of China's contract law may be applied to determine the rights and obligations of the parties.
Articles 8 and 107 of the Contract Law of the People's Republic of China
Article 179 of the Maritime Law of the People's Republic of China
The South China Sea Rescue Bureau of the Ministry of Transport (hereinafter referred to as the South China Sea Rescue Bureau) alleged that: After the “ Gabriel ” round was stranded in the Qiongzhou Strait, the Nanhai Rescue Bureau was commissioned by Achang Gross Investment Company ( hereinafter referred to as the investment company ) to provide assistance, transportation and protection. Waiting for services, but the investment company has not paid the bailout fee. The court was ordered to order the investment company and the Hong Kong Anda Ossen Co., Ltd. Shanghai Representative Office (hereinafter referred to as the Shanghai Representative Office) to pay the rescue fee of 7,240,998.24 yuan and interest.
The court found through trial that the “ Gabriel ” wheel of the investment company was a Greek tanker carrying 54580 tons of Cabinda crude oil . 2011 Nian 8 Yue 12 Ri 0500 at around near the Qiongzhou Strait North Channel aground, and the goods on board the ship at risk, a serious threat to the environment safe waters. After the accident, immediately authorized investment company Shanghai representative office to " Gabriel " round stranded matters issued an urgent message to the South China Sea Rescue Bureau, the South China Sea Rescue Bureau were requested relief arrangements based on experience two tugs, and agreed to offer South China Sea Rescue Bureau.
8 Yue 12 Ri 2040 , the Shanghai representative office in South China Sea Rescue Bureau to submit a power of attorney by e-mail, commissioned by the South China Sea Rescue Bureau sent a " South China Sea rescue 116" round and " South China Sea rescue 101" turn to the scene to help , " Gabriel ," rounds out the light Commitment, regardless of whether it can successfully assist in the light, agree to pay at a rate of 3.2 yuan per horsepower hour . The billing cycle is for the tugboat to start from the time of the standby duty station to the Shanghai representative office, and the tugboat returns. The original duty is on standby. The “ Nanhai Rescue 116” and “ Nanhai Rescue 101” rounds are only responsible for towing operations. If there is any accident during the “ Gabriel ” wheel deviation operation, the South China Sea Rescue Bureau is not responsible. In addition, please ask the Nanhai Rescue Bureau to send a group of diving members to the " Gabriel " round of exploration, the cost is: land transfer fee of 10,000 yuan; water transportation fee of 55,000 yuan; operating fee of 40000 per 8 hours Yuan, the billing cycle starts when the diver boardes the traffic ship, and leaves the traffic ship ashore until the operation is completed. On August 13 , the investment company also proposed to rent the " Nanhai Rescue 201" round to transport its two representatives from Haikou to the " Gabriel " round. The South China Sea Rescue Bureau sent an email to the Shanghai Representative Office saying that the “ Nanhai Rescue 201” round rate is 1.5 yuan per horsepower hour , and the total cost is calculated based on the rental time.
At the same time, in order to prevent further deterioration of the dangerous situation and cause marine pollution, the Zhanjiang Maritime Safety Administration decided to take measures to force offloading and de-loading the " Gabriel " round. By Zhanjiang Maritime Bureau organization, 8 Yue 18 Ri " Gabriel " round off the successful use climax tide shallow, after the safe arrival destination Qinzhou Port.
The actual assistance of the South China Sea Rescue Bureau is as follows:
The total capacity of the Nanhai Rescue Bureau's “ Nanhai Rescue 116” is 3681 , and the total power is 9000 kW ( 12,240 hp). After the " Nanhai Rescue 116" round arrived at the scene of the accident, according to the instructions of the investment company, the " Gabriel " round was guarded at the scene of the accident , working a total of 155.58 hours.
South China Sea Rescue Bureau belongs to " the South China Sea rescue 101" round gross tonnage is 4091 , the total power of 13860 kW ( 18,850 hp). The round returned to the scene of the accident. The South China Sea Rescue Bureau claimed that the total working time of the round was 13.58 hours.
The South China Sea Rescue Bureau's “ Nanhai Rescue 201” has a total tonnage of 552 and a total power of 4,480 kW ( 6093 hp). On August 13 , the ship transported two shipowners to board the stranded ship, working for 7.83 hours. On August 16 , the ship transported relevant personnel and equipment to the stranded ship, and the working time was 7.75 hours. On August 18th , the relevant personnel and baggage were transported to the barge, and the working time was 8.83 hours.
The diving team did not actually work in the water, and the working time was 8 hours.
It was also found that the salvage value of the vessel involved was $ 305,31856 , the salvage value of the cargo was $ 480,538,700 , and the salvage value of the ship accounted for 38.85% of the total salvage value .
Guangzhou Maritime Court in 2014 Nian 3 Yue 28 to May (2012) wide Haifa Chu Zi 898 No civil judgments : First, the investment company pay to salvage the South China Sea Rescue Bureau 6592913.58 million and interest; Second, dismissed the other claims of the South China Sea Rescue Bureau request. The investment company refused to accept the first-instance judgment and filed an appeal. Guangdong Provincial Higher People's Court in 2015 Nian 6 Yue 16 to May ( 2014 ) Guangdong Supreme Min Si Zhong Zi 117 No civil judgments : First, remove (Guangzhou Maritime Court 2012 ) wide Haifa Chu Zi 898 number of civil judgments ; Second, investment The company paid the rescue fee of 2,561,134.93 yuan and interest to the Nanhai Rescue Bureau ; 3. Dismissed other claims from the Nanhai Rescue Bureau. The South China Sea Rescue Bureau refused to accept the second instance judgment and applied for retrial. Supreme People's Court in 2016 Nian 7 Yue 7 a day to make ( 2016 ) and then up to France and China 61 No. Civil Judgment : 1. Cancellation of the Guangdong Provincial Higher People's Court ( 2014 ) Guangdong Gao Famin Si Zhong Zi No. 117 Civil Judgment; 2. Maintaining the Civil Judgment of the Guangzhou Maritime Court ( 2012 ) Guanghai Fa Chu Zi No. 898 .
The Supreme People's Court held that this case is a shipwreck rescue contract dispute. The People’s Republic of China has acceded to the International Convention on Relief of 1989 (hereinafter referred to as the bailout convention), and the purposes established by the bailout convention should be followed in this case. Since the investment company is a Greek company, the “ Gabriel ” round is a Greek-based tanker. This case has foreign-related factors. The parties concerned unanimously chose to apply the laws of the People's Republic of China in the lawsuit, and the law of the People's Republic of China shall be applied to hear the case in accordance with the provisions of Article 3 of the Law of the People's Republic of China on the Application of Foreign-related Civil Relations Law. China's maritime law, as a special law to adjust the relationship between maritime transport and ships, should be applied first. If there is no stipulation in the Maritime Law, the provisions of the relevant laws of China's contract law shall apply.
Shipwreck rescue is a traditional international maritime legal system. The bailout convention and China’s maritime law have made special provisions. Article 12 of the Salvation Convention and Article 179 of the Maritime Law stipulate the principle of “ no effect and no remuneration ” for the payment of salvage remuneration, Article 13 of the Salvation Convention, Article 180 of the Maritime Law and the one hundred and eighty Article 13 further stipulates the evaluation criteria and specific commitments of remuneration on the basis of this principle. The above-mentioned clauses are specific provisions for the shipwreck rescue contract for the parties to determine the salvage compensation based on the principle of “ no effect and no remuneration ” . At the same time, both the bailout convention and the Chinese maritime law allow parties to agree on the determination of salvage remuneration. Therefore, in addition to the “ no effect and no remuneration ” bailout contract stipulated in the bailout convention and China’s maritime law , an employment bailout contract can be formed according to the agreement of the parties.
According to the facts ascertained in this case, the investment company and the Nanhai Rescue Bureau have fully negotiated that the investment company should pay the remuneration regardless of the success of the rescue, and if there is any accident during the “ Gabriel ” round of the shallow operation, the South China Sea rescue The bureau does not need to be responsible. According to the agreement, there is no direct connection between the acquisition of the remuneration of the South China Rescue Bureau and the actual effect of the rescue. The calculation of the salvage remuneration is based on the fixed rate and cost agreed upon per hour of horsepower and labor input. As a basis, it is not related to the value of the property being rescued. Therefore, the bailout contract involved in this case does not belong to the “ no effect and no remuneration ” bailout contract stipulated in the bailout convention and China’s maritime law , but is an employment bailout contract.
There are no specific provisions on the payment terms and standards for remuneration under the employment assistance contract, the bailout convention and the Chinese Maritime Law. The first and second instance courts adjust the fixed rate agreed upon by the parties in the employment assistance contract in accordance with the relevant factors stipulated in Article 180 of the Maritime Law, which is an error in applicable law. This case shall be based on the relevant provisions of China's contract law, and the rights and obligations of the parties shall be standardized and determined. The South China Sea Rescue Bureau relies on its contract with the investment company to require the investment company to pay the agreed salvage payment in full.
To sum up, the court of second instance, based on the amount of salvage compensation determined in the first instance judgment, in accordance with the provisions of the Maritime Law, the investment company is ordered to pay salvage remuneration in proportion to the value of the salvage value of the ship in the total value of the salvage property, and the applicable law and the result of the treatment are wrong. correct. The first-instance judgment applies a legal error, but in view of the fact that the first-instance judgment adjusts the relevant rate based on the contractual agreement of the parties, the Nanhai Rescue Bureau has not challenged the relevant litigation rights, and the judgment of the first instance can be maintained.
(Effective referee judges: He Rong, Zhang Yongjian, Wang Shumei, Yu Xiaohan, Guo Zaiyu)
2019-02-25 11:22:58 | 来源：最高人民法院
Guidance Case No. 111
China Construction Bank Corporation Guangzhou Liwan Branch v. Guangdong
Lan Yue Energy Development Co., Ltd. and other letters of credit issue dispute
(Supreme People's Court Judicial Committee discussed and approved 2019 Nian 2 Yue 25 release date)
2019-02-25 11:22:58 | Source: Supreme People's Court
1. Whether the holder of the bill of lading obtains the property right and the type of property acquired due to the delivery of the bill of lading depends on the contract. When the issuing bank holds the bill of lading according to the contract between the issuing bank and the applicant for the issuing of the certificate, the people's court shall, in conjunction with the characteristics of the letter of credit transaction, reasonably interpret the contract and determine the true meaning of the bill of lading held by the issuing bank.
2. The issuing bank has the pledge of the bill of lading and the goods under the bill of lading in the documents under the letter of credit, and the issuing bank exercises the pledge of the bill of lading in the same way as the pledge of the movable property of the bill of lading, ie the bill of lading Under the item, the price of the goods will be discounted, sold, and auctioned.
Article 71 of the Maritime Law of the People's Republic of China
Article 224 of the Property Law of the People's Republic of China
Article 80 , paragraph 1, of the Contract Law of the People's Republic of China
China Construction Bank branch in Guangzhou Liwan (hereinafter referred to as Construction Bank branch in Guangzhou Liwan) and Guangdong Guangdong Blue Energy Development Co., Ltd. (hereinafter referred to Guangdong Blue Energy Company) in 2011 Nian 12 Yue signed a "Trade Financing Line Contract" and "About Open Relevant annexes to the L/C and other relevant agreements stipulate that the bank will provide Lan Yue Energy Company with a trade financing limit of not more than 550 million yuan, including the opening of a forward letter of credit equivalent. Huilai Yuedong Electric Fuel Co., Ltd. (hereinafter referred to as Yuedong Electric Power Co., Ltd.) and other guarantors signed a guarantee contract. 2012 Nian 11 months, the blue energy companies to Guangdong Construction Bank branch in Guangzhou Liwan apply to open 8592 million in long-term credit. In order to open a letter of credit, Lanyue Energy Company issued the “Trust Receipt” to the CCB Guangzhou Liwan Branch and signed the “Margin Pledge Contract”. The "Trust Receipt" confirms that from the date of receipt of the receipt, CCB Guangzhou Liwan Sub-branch will obtain the ownership of the documents and goods under the above-mentioned letter of credit, CCB Guangzhou Liwan Branch actee and beneficiary, Lan Yue Energy Company as trust goods trustee. After the letter of credit was opened, Lan Yue Energy Company imported 164,998 tons of coal. CCB Guangzhou Liwan Sub-branch accepted the letter of credit and loaned 84,868,552.27 yuan to Lanyue Energy Co., Ltd. , which was used by Lanyue Energy to repay the letter of credit of CCB Seoul Branch. After the CCB Guangzhou Liwan Sub-branch fulfilled its obligation to issue certificates and pay, it obtained a full set of documents including the bill of lading involved in the case. Lan Yue Energy Company failed to pay the redemption order due to the deterioration of its operating conditions. Therefore, CCB Guangzhou Liwan Sub-branch still holds the bill of lading and related documents during the trial. The coal under the bill of lading was seized by the People's Court of the Port Area of Fangchenggang City, Guangxi due to other disputes. Construction Bank branch in Guangzhou Liwan filed a lawsuit requesting an order Blue Guangdong energy company repay the principal amount of the letter of credit advances to the China Construction Bank branch in Guangzhou Liwan 84,867,952.27 Yuan and interest; confirm that CCB Guangzhou Liwan Sub-branch has ownership of 164,998 tons of coal under the letter of credit , and preferentially pay off the debts under the above-mentioned letters of credit for the disposal of the property; guarantors such as Yuedong Power assume the guarantee responsibility.
Guangzhou City, Guangdong Province, Intermediate People's Court in 2014 Nian 4 Yue 21 made (May 2013 ) Golden Spike France Minchuzi first 158 No. civil judgments, support Construction Bank branch in Guangzhou Liwan Guangdong on Blue Energy guarantor debt service and undertake corresponding security responsibility The petition, but the receipt of the trust receipt and the bill of lading could not be against the third party, dismissed the claim of the CCB Guangzhou Liwan Sub-branch for requesting confirmation of coal ownership and priority repayment. CCB Guangzhou Liwan Sub-branch refused to accept the first-instance judgment and filed an appeal. Guangdong Provincial Higher People's Court in 2014 Nian 9 Yue 19 to May ( 2014 ) Yue Gao Fa Min Er Zhong Zi 45 No. civil judgment, rejected the appeal and upheld the original verdict. CCB Guangzhou Liwan Sub-branch refused to accept the second-instance judgment and applied to the Supreme People's Court for retrial. Supreme People's Court in 2015 Nian 10 Yue 19 made (May 2015 ) Min Ti Zi of 126 No. civil judgments, Liwan, Guangzhou Branch of China Construction Bank support for the case involving letters of credit under the bill of lading proceeds from the disposal of goods that have priority claim, dismissed its The case involves a claim for ownership of the goods under the bill of lading.
The Supreme People's Court held that the bill of lading has the dual attributes of the creditor's right certificate and the title certificate, but it does not mean that whoever holds the bill of lading will of course have ownership of the goods under the bill of lading. For holders of bills of lading, whether they can acquire property rights and what type of property rights are obtained depends on the contractual agreement between the parties. CCB Guangzhou Liwan Sub-branch fulfilled the obligation of issuing documents and payment and obtained the bill of lading under the letter of credit. However, because the parties did not transfer the ownership of the goods, it could not be considered that the CCB Guangzhou Liwan Sub-branch obtained the bill of lading and obtained the goods under the bill of lading. ownership. Although the "Record Receipt" stipulates that CCB Guangzhou Liwan Sub-branch obtains the ownership of the goods and entrusts Lan Yue Energy Company to dispose of the goods under the bill of lading, according to the statutory principle of property rights, the agreement cannot be effective because it constitutes a guarantee. However, although the agreement on the guarantee can not be effective, but the agreement still has the effect of the contract, and the “Special Agreement on Opening a Letter of Credit” stipulates that the Lan Yue Energy Company defaults, the CCB Guangzhou Liwan Branch has the right to dispose of the letter of credit. According to the overall interpretation of the contract and the characteristics of the letter of credit transaction, it indicates that the true meaning of the party is to establish the bill of lading by the circulation of the bill of lading. The case is in line with the written pledge contract and property rights disclosure required for the establishment of the right pledge. The CCB Guangzhou Liwan Sub-branch is the holder of the bill of lading and enjoys the right of pledge of the bill of lading. The pledge of the bill of lading rights of CCB Guangzhou Liwan Sub-branch may be resolved in accordance with the law in the implementation of the distribution procedure if it conflicts with other creditors’ rights to liens and movable property rights to the goods under the bill of lading.
(Effective referee judges: Liu Guixiang, Liu Min, Gao Xiaoli)
2019-02-25 11:24:16 | 来源：最高人民法院
Guidance Case No. 112
Astek Co., Ltd. applied for the establishment of a maritime liability limitation fund case
(Supreme People's Court Judicial Committee discussed and approved 2019 Nian 2 Yue 25 release date)
2019-02-25 11:24:16 | Source: Supreme People's Court
Article 211 of the Maritime Law establishes the principle of “ one accident, one limit, multiple accidents, multiple limits ” for the limitation of liability for maritime claims . The key to judging an accident or multiple accidents is to analyze whether the accidents are caused by the same cause. If multiple accidents occur for the same reason and the cause chain is not interrupted, it shall be considered as an accident. If the cause chain is interrupted and an accident occurs again, it should be considered as a new independent incident.
Article 212 of the Maritime Law of the People's Republic of China
Astek Co., Ltd. filed an application with the Tianjin Maritime Court, claiming that its “ Ai ” round received a claim for aquaculture damage claim. For non-personal injury losses caused by the accident, Aspen Turk Co., Ltd. as the owner of the application round Limitation of Liability for Maritime Fund, the limits of liability to 422,510 Special Drawing Rights and the sum since 2014 Nian 6 Yue 5 Interest from the date of the establishment of the fund to the date of establishment of the fund.
Many farmers have raised objections as interested parties and believe that Astike Co., Ltd. should set up a restricted fund separately, instead of setting up a restricted fund for the entire voyage.
The court found that the owner of the vessel involved in the Korean “ Ai ” round was Astike Co., Ltd., with a total tonnage of 2030 tons. 2014 Nian 6 Yue 5 days, " Ai Lennon " round the way from Qinhuangdao cargo bound for the port of Tianjin, into the farming region in Changli County, Hebei Province, Leting County waters, resulting in losses related to aquaculture farmers.
It was also found that the " Ai Wei " round used the English version of No. 1249 in the event of the damage in this case . The chart has indicated that the aquaculture zone has been set up in the sea area where the accident occurred, and the scope of the culture zone has been delineated. The ship involved in the case crosses the breeding area for the route pre-set by the voyage involved.
It was further found that Guo Jinwu and Liu Haizhong's breeding area are about 500 meters apart , and the sailing time of the ship involved is about 2 minutes; Liu Haizhong and Li Weiguo and other people's breeding areas are about 9000 meters away, and the sailing time of the ship involved is about 30 minutes.
Tianjin Maritime Court in 2014 Nian 11 Yue 10 to May ( 2014 ) Zi Jin Haifa limit 1 Hao civil ruling: First, permit restrictions apply for the fund for maritime claims liability Aspen Turk Co. raised. Second, limit the amount of liability for maritime claims fund 422 510 Special Drawing Rights and interest (interest since 2014 Nian 6 Yue 5 day stop until the establishment of the fund, financial institutions, according to People's Bank of China to determine the one-year benchmark lending rate calculated over the same period) . 3. Astike Co., Ltd. shall establish a maritime liability limitation fund within three days from the date of the entry into force of the ruling by the renminbi or a court-approved guarantee (the renminbi amount of the fund shall be converted into RMB according to the special drawing right on the effective date of this ruling. Method calculation). If the fund is not established within the time limit, it shall be processed according to the automatic withdrawal of the application. Guo Jinwu and Liu Haizhong refused to accept the first-instance ruling and appealed to the Tianjin Higher People's Court. Tianjin Higher People's Court in 2015 Nian 1 Yue 19 a day to make ( 2015 ) Tianjin Gao Min Zhong Zi four 10 Hao civil ruling: dismiss the appeal and upheld the original ruling. Guo Jinwu, Liu Haizhong, Li Weiguo, Zhao Laijun, Qi Yongping, Li Jianyong and Qi Xiukui refused to accept the second instance ruling and applied for retrial. Supreme People's Court in 2015 Nian 8 Yue 10 a day to make ( 2015 ) Min Shen Zi 853 No. civil ruling, arraignment the case, and in 2015 Nian 9 Yue 29 made (May 2015 ) Min Ti Zi of 151 No civil ruling: First, remove the Tianjin Higher People's Court ( 2015 ) Gao Min Tsu four Final Word No. 10 Civil Ruling. 2. Revocation of the Tianjin Maritime Court ( 2014 ) Jinhai Law Limited Word No. 1 Civil Ruling. 3. Rejecting the application for the establishment of a maritime liability limitation fund proposed by Astike Co., Ltd.
The Supreme People's Court held that Article 221 of the Maritime Law establishes the principle of accidents for the limitation of maritime claims, that is, " one accident, one limit, multiple accidents, multiple limits " . The key to judging one or more accidents is to analyze whether the two accidents are caused by the same reason. If multiple accidents occur for the same reason, but the cause chain is not interrupted, it should be considered an accident. If the cause chain is interrupted and there are new reasons for intervention, the new cause constitutes a new causal relationship with the new accident and forms a new independent accident. As far as this case is concerned, the English version of the chart used in the " Ai Wei " round clearly marked the scope of the breeding area, but the crew set the route to the breeding area, which itself has major faults. In the case that the vessel involved in the case may have a large-scale aquaculture area in the sea area where the foresight is to be carried out, the obligatory obligation should be strengthened to ensure safe navigation and avoid damage caused by collision with the farming area. According to the trajectory of the ship involved in the case, the ship involved in the case actually entered the breeding area operated by Guo Jinwu. In view of the fact that the damage occurred at noon, there was no nighttime visual impairment. If the crew carefully performed their expectations and driving duties, they should be able to notice the presence of suspended culture floats on the surface of the sea. In the case that the Changli County Marine Bureau issued evidence to prove that Guo Jinwu suffered actual damage, it can be presumed that the crew did not fulfill the cautious obligatory obligation, resulting in the first infringement. According to the trajectory of the voyage, the ship then entered the breeding area of Liu Haizhong. Since Guo Jinwu and Liu Haizhong's breeding area are adjacent to each other, about 500 meters apart , based on the inertia of the ship's motion and the law of ship driving, the ship involved in the case could not take reasonable measures to avoid it. Liu Haizhong’s breeding area caused the second infringement to take place. From the analysis of the reasons, the two damages were caused by the negligence of the crew before the ship entered the Guo Jinwu breeding area, and the cause chain was not interrupted. Therefore, the two infringements should be recognized as one time. accident. The ship sailed away from the breeding area of Liu Haizhong and entered the open sea, sailing about 9000. After about half an hour, the meter entered the breeding area of Li Weiguo and others and caused another damage accident. Before entering the breeding area of Li Weiguo and others, the crew should have more time to adjust the psychological state of driving negligence, and in the case of pre-knowing that there is a breeding area in front of the voyage, it is necessary to strengthen the obligatory obligation to avoid causing damage again. The ship involved in the case apparently failed to fulfill the obligation to drive cautiously, resulting in the second damage accident. There was no correlation between the two accidents in terms of time and subjective state. The second accident was not caused by the natural continuation of the first accident. There was no causal relationship between the two accidents. Astek Co., Ltd. advocated that the psychological state of the crew entering the wrong state during the whole accident did not change, and the reason why the chain of reasons did not break could not be established. Although the occurrence of both accidents was caused by “the same nature ” , that is, the crew’s negligent driving, it was not based on “the same reason ” and caused two accidents. According to the principle of “ one accident, one limit ” , the ship involved in the case should set up different liability limitation funds for the two accidents. The courts of the first and second courts failed to comprehensively examine the location of the aquaculture area, the causal relationship between the two accidents, and the subjective state of the parties. The ship involved in the case only caused an accident and allowed the vessel involved in the case to establish a fund with a wrong determination, which should be corrected according to law.
(Effective referee judges: Wang Shumei, Fu Xiaoqiang, Huang Xiwu)