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Second Group of Model Cases Involving Construction of the “Belt and Road” Published by the Supreme People's Court [Effective]
最高法院发布的第二批涉“一带一路”建设典型案例 [现行有效]
【法宝引证码】

Second Group of Model Cases Involving Construction of the “Belt and Road” Published by the Supreme People's Court 

最高法院发布的第二批涉“一带一路”建设典型案例

(May 15, 2017) (2017年5月15日)

Case No. 1 案例一
Accurately Applying the Principle of Contract Interpretation and Clarifying the Nature of the Right of the Holder of the Bill of Lading 准确适用合同解释原则 明晰提单持有人的权利性质
--Liwan Subbranch, Guangzhou Branch of China Construction Bank Co., Ltd. v. Guangdong Lanyue Energy Development Co., Ltd. et al. (Retrial case concerning dispute over issuance of a letter of credit) --中国建设银行股份有限公司广州荔湾支行与广东蓝粤能源发展有限公司等信用证开证纠纷再审案
[Basic Facts] 【基本案情】
In December 2011, Liwan Subbranch, Guangzhou Branch of China Construction Bank Co., Ltd. (hereinafter referred to as “Liwan Subbranch”) and Guangdong Lanyue Energy Development Co., Ltd. (hereinafter referred to as “Lanyue Energy Company”) concluded a Contract on Trade Financing Quota and a Special Agreement on Issuance of a Letter of Credit and the relevant appendixes. It was stipulated that Liwan Subbranch provided Lanyue Energy Company with the trade financing quota not exceeding CNY550 million, including issuance of a usance letter of credit (“L/C”) with equivalent quota. Guangdong Yuedong Electric Power Design Engineering Co., Ltd. (hereinafter referred to as “Yuedong Electric Power Company”) and other guarantors concluded guarantee contracts. In November 2012, Lanyue Energy Company filed an application with Liwan Subbranch for issuing a usance L/C of CNY85.92 million. For the purpose of issuing the L/C, Lanyue Energy Company submitted the Trust Receipt to Liwan Subbranch and they concluded a Contract on Pledge of Margins. The Trust Receipt confirmed that from the date of issuance of receipts, Liwan Subbranch obtained the ownership of documents and goods involved under the aforesaid L/C, Liwan Subbranch was the settler and beneficiary, and Lanyue Energy Company was the trustee of the trusted goods. After the issuance of the L/C, Lanyue Energy Company imported 164,998 tons of coal. Liwan Subbranch accepted the L/C and paid CNY84,867,952.27. After performing the obligations of issuing the L/C and making payment, Liwan Subbranch obtained the full set of documents, including the bill of lading involved. Due to deterioration of business operations, Lanyue Energy Company failed to make payment against the documents. Therefore, in the trial of this case, Liwan Subbranch still held the bill of lading and the relevant documents. The coal under the bill of lading was seized by the People's Court of Gangkou District, Fangchenggang City, Guangxi Zhuang Autonomous Region due to other disputes. Liwan Subbranch filed this lawsuit with the Intermediate People's Court of Guangzhou City, Guangdong Province and requested the Court to order that Lanyue Energy Company should pay off the principal of CNY84,867,952.27 under the L/C and the interest thereof; confirm that 164,998 tons of coal under the L/C was owned by Liwan Subbranch and Liwan Subbranch enjoyed the priority of compensation from the disposal of coal under the bill of lading; and Yuedong Electric Power Company and other guarantors should assume the guarantee liability. 建行广州荔湾支行与蓝粤能源公司于2011年12月签订了《贸易融资额度合同》及《关于开立信用证的特别约定》等相关附件,约定该行向蓝粤能源公司提供不超过5.5亿元的贸易融资额度,包括开立等值额度的远期信用证。粤东电力等担保人签订了保证合同等。2012年11月,蓝粤能源公司向建行广州荔湾支行申请开立8592万元的远期信用证。为开立信用证,蓝粤能源公司向建行广州荔湾支行出具了《信托收据》,并签订了《保证金质押合同》。《信托收据》确认自收据出具之日起,建行广州荔湾支行即取得上述信用证项下所涉单据和货物的所有权,建行广州荔湾支行为委托人和受益人,蓝粤能源公司为信托货物的受托人。信用证开立后,蓝粤能源公司进口了164998吨煤炭。建行广州荔湾支行承兑了信用证并付款人民币84867952.27元。建行荔湾支行履行开证和付款义务后,取得了包括本案所涉提单在内的全套单据。蓝粤能源公司因经营状况恶化而未能付款赎单,故建行荔湾支行在本案审理过程中仍持有提单及相关单据。提单项下的煤炭因其他纠纷被广西壮族自治区防城港市港口区人民法院查封。建行广州荔湾支行向广东省广州市中级人民法院提起本案诉讼,请求判令蓝粤能源公司清偿信用证项下本金人民币84867952.27元及利息;确认信用证项下164998吨煤炭属建行广州荔湾支行所有,并对处置提单项下煤炭所获价款有优先受偿权;粤东电力等担保人承担担保责任。
[Adjudication] 【裁判结果】
The judgment of first instance rendered by the Intermediate People's Court of Guangzhou City, Guangdong Province supported the claim of Liwan Subbranch that Lanyue Energy Company should repay the principal and the interest and the guarantors should assume the corresponding guarantee liability. However, on the ground that the delivery of the Trust Receipt and the bill of lading could not be against a third party, the Intermediate People's Court of Guangzhou City rejected the claim of Liwan Subbranch for confirmation of the coal ownership and the priority of compensation. Liwan Subbranch refused to accept the item of the judgment of first instance that Liwan Subbranch's claim for confirmation of the coal ownership and the priority of compensation should be dismissed, and it appealed. The Higher People's Court of Guangdong Province rendered a judgment of second instance to dismiss the appeal and affirm the original judgment. Liwan Subbranch refused to accept the judgment of second instance and filed an application for retrial with the Supreme People's Court. The Supreme People's Court brought this case to trial. 广东省广州市中级人民法院一审判决支持建行广州荔湾支行关于蓝粤能源公司还本付息以及担保人承担相应担保责任的诉请,但以信托收据及提单交付不能对抗第三人为由,驳回建行广州荔湾支行关于请求确认煤炭所有权以及优先受偿权的诉讼请求。建行广州荔湾支行不服一审判决驳回所有权及优先受偿权诉请的判项,提起上诉。广东省高级人民法院二审判决驳回上诉,维持一审判决。建行广州荔湾支行不服二审判决,向最高人民法院申请再审,最高人民法院提审本案。
In the retrial, the Supreme People's Court held that: A bill of lading had dual attributes including certificate of creditor's rights and certificate of ownership, but it did not mean that the holder of the bill of lading would necessarily enjoy the ownership of goods under the bill of lading. As for the holder of the bill of lading, whether it could obtain the real right and which type of real right it could obtain depended on the contractual stipulations of the parties. Liwan Subbranch has performed the obligations of issuing the L/C and making payment and obtained the bill of lading under the L/C. However, since the parties had no intention of transferring the ownership of goods, it could not be determined that Liwan Subbranch obtained the bill of lading, namely, ownership of goods under the bill of lading. In the Trust Receipt, guarantee was provided by transferring the ownership of goods under the bill of lading. Since the transfer of guarantee did not conform to the statutory principle of real rights, the effect of the real rights could not be produced, and the transfer of guarantee was obviously different from pledge of movables or pledge of rights, the Trust Receipt should not serve as the basis for identifying the establishment of the contract on the pledge of rights in the bill of lading. It was stipulated in the Special Agreement on Issuance of a Letter of Credit that when Lanyue Energy Company breached the contract, Liwan Subbranch enjoyed the guarantee rights and had the right to dispose of documents and goods under the L/C. Therefore, according to the overall interpretation of the contract and characteristics of L/C trading, it was indicated that the true intentions of the parties on the guarantee rights and the disposal rights included the right of setting pledge of the bill of lading. This case satisfied two essential conditions for the establishment of pledge of right, namely, a written pledge contract and a publication of real rights. As the holder of the bill of lading, Liwan Subbranch enjoyed the right of pledge of the bill of lading. Therefore, on October 19, 2015, the Supreme People's Court rendered a judgment upon retrial and confirmed that Liwan Subbranch enjoyed priority of compensation from money paid in the disposal of goods in the bill of lading under the L/C involved. 最高人民法院再审认为,提单具有债权凭证和所有权凭证双重属性,但并不意味着谁持有提单谁就当然对提单项下货物享有所有权。对于提单持有人而言,其能否取得物权以及取得何种物权,取决于当事人之间的合同约定。建行广州荔湾支行履行了开证及付款义务并取得信用证项下的提单,但是由于当事人之间没有移转货物所有权的意思表示,故不能认为建行广州荔湾支行取得提单即取得提单项下货物的所有权。《信托收据》内容是以让与提单项下货物所有权来提供担保,让与担保因不符合物权法定原则,不能产生物权效力,而让与担保明显区别于动产质押或权利质押,故《信托收据》亦不应作为认定设立提单权利质押的合同依据。由于《关于开立信用证的特别约定》约定蓝粤能源公司违约时,建行广州荔湾支行享有担保权利并有权处分信用证项下单据及货物,因此根据合同整体解释以及信用证交易的特点,表明当事人关于担保权利和处分权的真实意思表示包括设定提单质押的权利。本案符合权利质押设立所须具备的书面质押合同和物权公示两项要件,建行广州荔湾支行作为提单持有人,享有提单权利质权。据此,最高人民法院于2015年10月19日作出再审判决,改判确认建行广州荔湾支行对案涉信用证项下提单对应货物处置所得价款享有优先受偿权。
[Significance] 【典型意义】
This case was about dispute over issuance of a foreign-related usance documentary L/C and the issue was the nature of rights of the holder of the bill of lading. In the trading of international sales of goods by means of a documentary L/C, there was no final conclusion on which types of rights enjoyed by the issuing bank that legally held a bill of lading after payment for goods under the bill of lading in judicial practice and opinions varied. The judgment of this case has given clear answers to the legal attribute of the bill of lading, the legal significance of the trust receipt, which types of rights enjoyed by the holder of the bill of lading, and other difficult and complex problems. It has key guidance significance in unifying the application of law in this field. First, the judgment of this case specified that the bill of lading corresponding to the documentary L/C had such dual attributes as certificate of creditor's rights and certificate of ownership. The specific rights of the holder of the bill of lading depended on the causal legal relationship based on which the bill of lading was forwarded. Therefore, debate on the nature of the certificate of the bill of lading that has long puzzled the judicial practice was clarified. Second, the judgment of this case treated the Contract on Trade Financing Quota, the Special Agreement on Issuance of a Letter of Credit, and the Trust Receipt as a whole, explored the true intentions of the parties by means of contract system interpretation and in light of the underlying mechanisms and conventions, so that the issuing bank enjoyed the right of pledge of the bill of lading, the autonomy of the parties was truly respected, and the priority of compensation of the issuing bank was safeguarded according to the law. In the construction of the “Belt and Road,” as the “life blood of international commercial transactions,” the documentary L/C has played vital functions in safeguarding transaction security and monetary circulation. By means of unifying adjudication rules, settling disputes, and concluding cases, the judgment of this case has improved the documentary L/C trading and security system, effectively avoided puzzles to international trade due to absence of rules, and fully reflected the spirit of strict judicial justice. 本案是一起具有涉外因素的远期跟单信用证开证纠纷,争议焦点是提单持有人的权利性质。在通过跟单信用证进行国际货物买卖的交易中,因付款而合法持有提单的开证行对提单项下货物享有何种权利,司法实践中对该问题一直缺乏定论,众说纷纭。本案判决对提单的法律属性、信托收据的法律意义以及提单持有人享有何种权利等疑难复杂问题作出了清晰的解答,对于统一该领域的法律适用具有重要指导意义。首先,本案判决明确了跟单信用证对应的提单具有债权凭证和所有权凭证双重属性,提单持有人的具体权利取决于提单流转所依据的原因法律关系,由此澄清了长期困扰司法实践的提单凭证法律属性之争。其次,本案判决将涉案《贸易融资额度合同》及《关于开立信用证的特别约定》《信托收据》等作为一个整体,通过合同体系解释,结合跟单信用证的基本机制和惯例,探究当事人的真实意思表示,从而认定开证行对提单享有质权,切实尊重当事人意思自治,依法保护开证行的优先受偿权。在“一带一路”建设过程中,跟单信用证作为“国际商业交易的生命血液”发挥着保障交易安全和资金融通的重要功能。该判决通过统一裁判规则,定分止争,完善了跟单信用证交易和保障制度,有效避免了因规则缺位而给国际贸易造成的困扰,充分体现了严格公正司法的精神。
Case No. 2 案例二
Respecting Autonomy of the Parties and Reasonably Protecting the Right of Brokers to Claim Remuneration 尊重当事人意思自治合理保护居间者的报酬请求权
--Wanjia Financing Consulting PLC (British Virgin Islands) and Ye (Malaysian) v. Zhongyu Building Materials Group Co., Ltd. (Appeal case concerning dispute over a brokerage contract) --英属维尔京群岛万嘉融资咨询私人有限公司、马来西亚叶某某与中宇建材集团有限公司居间合同纠纷上诉案
[Basic Facts] 【基本案情】
On February 26, 2009, Wanjia Financing Consulting PLC (hereinafter referred to as “Wanjia Company”) registered and founded in British Virgin Islands and Ye concluded an Agreement on Financing Service and Confidentiality with Zhongyu Building Materials Co., Ltd. (hereinafter referred to as “Zhongyu Company”). According to the Agreement, Ye and Wanjia Company introduced investors for Zhongyu Company's financing of capital and Zhongyu Company would pay the financing service charge that was 9% of the amount of actual investment in two parts. In particular, 4% of the amount of actual investment would be paid within 14 days upon completion of capital injection in cash or by remittance and the other 5% thereof would be injected into Zhongyu Company or a listed company designated by Zhongyu Company as strategic investment funds according to the equivalent clauses of investors. Afterwards, Wanjia Company and Ye successfully introduced investors for Zhongyu Company, but Zhongyu Company failed to pay the remuneration and a dispute was caused thereby. Wanjia Company and Ye filed this lawsuit with the Higher People's Court of Fujian Province and requested the Court to order that Zhongyu Company should pay the financing service charge in arrears and the interest thereof. 英属维尔京群岛注册成立的万嘉公司、叶某某于2009年2月26日与中宇公司签订《融资服务及保密协议》,约定叶某某和万嘉公司为中宇公司募集资金引荐投资者,中宇公司支付实际投资资金总额9%的融资服务费,分两部分支付,其中4%于注资完成后的14天内以现金或汇款的方式支付,其余5%按照投资者的同等条款作为战略投资资金注入中宇公司或指定上市主体。此后,万嘉公司、叶某某成功为中宇公司引荐了投资者,但中宇公司未支付报酬,引发纠纷。万嘉公司、叶某某向福建省高级人民法院提起本案诉讼,请求判令中宇公司支付拖欠的融资服务费及其利息。
[Adjudication] 【裁判结果】
The judgment of first instance rendered by the Higher People's Court of Fujian Province partially supported the claims of Wanjia Company and Ye and ordered that Zhongyu Company should pay Wanjia Company and Ye the remuneration that was 5% of the amount of investment introduced by them depending on the actual circumstances. Wanjia Company, Ye, and Zhongyu Company refused to accept the judgment of first instance and appealed to the Supreme People's Court. 福建省高级人民法院一审判决部分支持了万嘉公司、叶某某的诉讼请求,酌情判令中宇公司向万嘉公司、叶某某支付引入投资金额5%的报酬。万嘉公司、叶某某以及中宇公司均不服,向最高人民法院提起上诉。
In the view of the Supreme People's Court, this lawsuit was about dispute over a brokerage contract. It was correct for the court of first instance to determine that the law of the People's Republic of China was applicable to the trial of this case according to the principle of party autonomy. The Agreement on Financing Service and Confidentiality was the true will of both parties and it did not violate any provisions of the Chinese law. It was correct for the court of first instance to determine that the Agreement was legal and valid. Wanjia Company and Ye fully performed the contractual obligations and they had the right to obtain the corresponding remuneration according to the contractual stipulations. In other words, Wanjia Company and Ye may obtain the remuneration with the amount of 9% of the total amount of financing capital from Zhongyu Company. According to the contractual stipulations, 5% of the remuneration would be paid not in cash. As a matter of fact, it would involve the problem in which Wanjia Company and Ye served as investors of Zhongyu Company or the listed company it designated, be confronted with obstacles in terms of the Company Law, and be difficult to realize. Therefore, the Supreme People's Court determined that 5% of the remuneration should be paid in the same method taken for the other 4% of the remuneration. In the judgment of second instance rendered by the Supreme People's Court, the judgment of first instance was set aside, Zhongyu Company was ordered to pay Wanjia Company and Ye the remuneration with the amount of 9% of the total amount of financing capital obtained by Zhongyu Company, namely, CNY18,280,753 and the interest. 最高人民法院认为,本案系居间合同纠纷,一审法院根据当事人意思自治原则确定本案适用中华人民共和国法律审理是正确的。《融资服务及保密协议》是当事人之间的真实意思表示,并不违反中国法律的规定,一审法院认定该合同合法有效是正确的。万嘉公司、叶某某全面履行了合同义务,有权根据合同约定获得相应的报酬,即万嘉公司、叶某某可以从中宇公司获得融资总金额9%的报酬。合同约定第二部分报酬5%的支付方式不是现金方式,事实上会涉及万嘉公司、叶某某作为中宇公司或其指定的上市公司的投资者的问题,面临公司法上的障碍,难以实现,因此酌定与另4%报酬采取同样的方式支付。最高人民法院二审判决撤销一审判决,改判中宇公司向万嘉公司、叶某某支付中宇公司获得融资总金额9%的报酬,即人民币18280753元及其利息。
[Significance] 【典型意义】
This case has great significance in the reasonable protection of brokers' right to claim remuneration. In the process of promoting the strategy of the “Belt and Road,” a broker provides investors or fund-raisers with brokerage services and his or her right to claim remuneration should be protected by law. The Chinese court has fully respected the principle of party autonomy, determined the amount of brokerage remuneration according to the contractual stipulations, and appropriately adjusted the payment manner of the brokerage remuneration based on the actual situations. The practice of the Chinese court has equally protected the lawful rights and interests of all parties and maintained the trade order, which is conducive to promoting international investment and exchange. 该案对于合理保护居间人的报酬请求权具有重要意义。在“一带一路”战略推进过程中,居间人为投资者或者募集者提供居间服务,其报酬请求权应受法律保护。中国法院充分尊重当事人意思自治原则,根据合同约定确定居间报酬的金额,并根据实际情况适当调整居间报酬的支付方式,平等保护各方当事人的合法权益,维护交易秩序,有利于促进国际投资和国际交流。
Case No. 3 案例三
Specifying the Compensation Liability of the Intermediary Bank for Its Fault and Safeguarding the Security of Letter of Credit Trading 明确中介行过错赔偿责任维护信用证交易安全
--Qixia Lvyuan Fruits & Vegetables Co., Ltd. v. Beijing Branch of Bank of China Co., Ltd. (Retrial review case concerning dispute over transfer of a letter of credit) --栖霞市绿源果蔬有限公司与中国银行股份有限公司北京市分行信用证转让纠纷再审审查案
[Basic Facts] 【基本案情】
On June 7, 2007, Beijing Branch of Bank of China Co., Ltd. (hereinafter referred to as “Beijing Branch”) received a transferable letter of credit (“L/C”) in the format of SWIFT forwarded by Dnieper Credit Bank (Ukraine). The L/C showed that the issuing bank was Lloyd Trade and Savings Commission located in the Republic of Slovakia, the applicant was Tata Lucca Co., Ltd. (Cyprus), the beneficiary was Bain & Company, and the transferring bank and notifying bank was Beijing Branch. On the same day, Beijing Branch notified the beneficiary Bain & Company of the L/C and Bain & Company filed an application with Beijing Branch for transferring the L/C with Luyuan Company as the secondary beneficiary and designated Qixia Branch of Bank of China Co., Ltd. in Shandong Province (hereinafter referred to as “Qixia Branch”) as the notifying bank. On June 14, 2007, according to the instructions of Bain & Company, Beijing Branch transferred the L/C and forwarded the telegraph text of the L/C in the format of SWIFT. The issuing bank indicated in the written notice on transferring the L/C received by Luyuan Company from Qixia Branch was Dnieper Credit Bank (Ukraine). After submitting the relevant documents, Luyuan Company did not receive funds under the L/C. Upon consultation and inquiry, Luyuan Company found that the issuer was Lloyd Trade and Savings Commission located in the Republic of Slovakia, which was not a bank. On the ground that erroneous information in the L/C made Luyuan Company believe that the L/C involved was issued by a bank and losses were caused, Luyuan Company filed a lawsuit with the No. 2 Intermediate People's Court of Beijing Municipality and requested the Court to order that Beijing Branch should compensate Luyuan Company CNY6,790,344 and the losses of interest and tax rebate of CNY246,606.06. 2007年6月7日,中国银行北京分行收到经由乌克兰第聂伯信贷银行以SWIFT格式转递的可转让信用证,显示开证行是位于斯洛伐克的劳埃德贸易储蓄委员会,开证申请人是塞浦路斯塔塔卢卡有限公司,受益人为倍恩公司,转让行和通知行为中国银行北京分行。同日,中国银行北京分行向受益人倍恩公司通知了该信用证,倍恩公司向中国银行北京分行申请以绿源公司为第二受益人转让该信用证,并指定中国银行山东省栖霞支行为通知行。2007年6月14日,中国银行北京分行按照倍恩公司的指示转让了该信用证,并以SWIFT格式发送转让信用证电文。绿源公司从中国银行山东省栖霞支行接收的转让信用证通知书所标明的开证行为乌克兰第聂伯银行。绿源公司交单后未收到信用证项下款项,经联系与查询,发现开证行是位于斯洛伐克境内的劳埃德贸易储蓄委员会,并非一家银行,遂以信用证通知信息错误使绿源公司信赖涉案信用证为银行开立并导致损失为由,向北京市第二中级人民法院提起本案诉讼,请求判令中国银行北京分行赔偿绿源公司损失人民币6790344元及利息损失、退税损失人民币246606.06元。
[Adjudication] 【裁判结果】
In the trial of first instance, the No. 2 Intermediate People's Court of Beijing Municipality held that: Beijing Branch had a fault in erroneously notifying the title of the issuer. It was one reason for Luyuan Company's losses, but it was not the only reason. Therefore, the No. 2 Intermediate People's Court of Beijing Municipality rendered a judgment that Beijing Branch should assume the liability of compensation for Luyuan Company's loss of CNY3.4 million and the interest loss calculated at the interest rate on deposits over the same period, and reject other claims of Luyuan Company. Both Luyuan Company and Beijing Branch refused to accept the judgment of first instance and appealed to the Higher People's Court of Beijing Municipality. In the trial of second instance, the Higher People's Court of Beijing Municipality held that: Beijing Branch had a gross negligence in erroneously notifying the title of the issuer. There was no evidence in this case proving that before receipt of the notice on transferring the L/C, Luyuan Company has expressly known the title of the issuer. There was causation between Luyuan Company's losses and Beijing Branch's erroneous notification in forwarding the L/C and Beijing Branch should assume the compensation liability according to the law. Therefore, the Higher People's Court of Beijing Municipality rendered a judgment that Beijing Branch should pay Luyuan Company CNY6,749,265.85 and the interest loss calculated at the interest rate on deposits over the same period, and other claims of Luyuan Company should be rejected. Luyuan Company refused to accept the judgment of second instance and filed an application for retrial with the Supreme People's Court. It claimed that since it did not receive the payment for goods, it had to borrow a loan from a bank and there was loss of loan interest; in the meantime, there was loss of export tax rebate; and the judgment of second instance that did not support the aforesaid two claims for loss compensation lacked evidence in fact-finding and was erroneous in the application of law. 北京市第二中级人民法院一审认为,中国银行北京分行对开证行名称通知错误,存在过失,这是导致绿源公司产生损失的原因之一,但并非造成绿源公司损失的唯一原因,据此判决中国银行北京分行对绿源公司人民币340万元损失及按银行同期存款利率计算的利息损失承担赔偿责任,驳回绿源公司其他诉讼请求。绿源公司和中国银行北京分行均不服一审判决,向北京市高级人民法院提出上诉。北京市高级人民法院二审认为,中国银行北京分行对开证行名称出现的通知错误存在重大过失,本案没有依据证明绿源公司在接到转让信用证通知前已明确知晓开证行名称,绿源公司的损失与中国银行北京分行在转递信用证中的通知错误存在因果关系,中国银行北京分行应依法承担赔偿责任,改判中国银行北京分行给付绿源公司人民币6749265.85元及按银行同期存款利率计算的利息损失,并驳回绿源公司的其他诉讼请求。绿源公司不服二审判决,向最高人民法院申请再审,主张因其未收到货款,只好向银行贷款,故产生贷款利息损失,同时还有出口退税款损失,二审判决未支持上述两项损失赔偿请求属认定事实缺乏证据证明及适用法律确有错误。
Upon review, the Supreme People's Court held that: The Uniform Customs and Practice for Documentary Credits (No. 500 Publication of ICC) to be applicable as prescribed in the L/C involved did not specify which type of liability the intermediary bank should assume for its erroneous notification. It was not inappropriate for the original judgment to apply the provisions of subparagraph 2 of Article 106 of the General Principles of the Civil Law of the People's Republic of China on the tort of fault. The fault of Beijing Branch made Luyuan Company erroneously believe that the issuer was a bank with good credit, accept the L/C, and suffer from losses. Therefore, Beijing Branch should assume the corresponding compensation liability according to the degree of fault. L/C was document trading independent from the underlying contract. Therefore, the scope of liability that should be assumed by the party to the L/C that violated its obligations should be only limited to direct losses under the L/C. The loss of loan interest and the loss of export tax rebate claimed by Luyuan Company were expenses and interest that may be avoided and obtained if the underlying contract could be fulfilled and they were not direct loss under the L/C and were not within the scope of losses that should be predicted by the party to the L/C. There was no causation between the aforesaid losses and the fault of the party to the L/C that violated its obligations. Therefore, these losses should not be compensated in the L/C relationship. The Supreme People's Court rendered a ruling to dismiss Luyuan Company's application for retrial. 最高人民法院经审查认为,本案所涉信用证约定适用的国际商会第500号出版物《跟单信用证统一惯例》对中介银行就其错误通知行为应当承担何种责任没有作出具体规定。原判决适用《中华人民共和国民法通则》第一百零六条第二款过错侵权的规定,并无不当。中国银行北京分行的过错行为,导致绿源公司错误信赖开证人是一家信用良好的银行而接受信用证并遭受损失,中国银行北京分行应当根据过错程度承担相应的赔偿责任。信用证是独立于基础合同的单据交易,因此信用证当事人违反义务所应承担的责任范围应当仅限于信用证项下的直接损失。绿源公司主张的贷款利息损失和出口退税损失,是基础合同如能履行可以避免的支出以及可以获得的利益,不属于信用证项下的直接损失,不是信用证当事人应当预见的损失范围,与信用证当事人违反义务的过错行为之间不具有相当因果关系,故不应在信用证关系中得到赔偿。据此,最高人民法院裁定驳回绿源公司的再审申请。
[Significance] 【典型意义】
This case is about dispute over transfer of a L/C between countries along the “Belt and Road.” Under the circumstance where the Chinese law and the international practice did not specify the scope of liabilities of the intermediary bank for its erroneous notification and there was no contractual relationship between the intermediary bank and the beneficiary, according to the principle of compensation for tort damage, the people's court determined that the intermediary bank had the obligation of accurate notification and if the intermediary bank violated such obligation, it should assume the corresponding liability of damages. The aforesaid practice of the people's court undoubtedly has great significance in guaranteeing the trading order and security based on L/C. First, the ruling of this case indicated that what were handled by all relevant parties to the L/C were only documents other than goods and services related to such documents or other activities. Therefore, the sole legal basis for judging loss caused by the fault of the intermediary bank must be the L/C itself and the loss could not be calculated based on the underlying contract, which has clearly revealed the connotation of the principle of independence of the L/C. Second, when specifying the obligation of the bank, the ruling of this case adopted the principle of predictability and determined that the scope of damages may not exceed the unpaid amount under the L/C and the interest, which has guaranteed the predictability of the scope of compensation liability. The ruling of this case has great significance in unifying the adjudication rules and filling in the legal lacuna and has strong reference value for similar cases concerning dispute over L/C in the future construction of the “Belt and Road.” 该案系涉“一带一路”沿线国的信用证转让纠纷,在中国法律以及国际惯例对中介行错误通知的责任范围均没有明确规定,中介行与受益人之间又没有合同关系的情况下,依据侵权损害赔偿原则,确定中介行负有准确通知信息的义务以及违反义务需承担相应损害赔偿责任,对于保障信用证交易秩序安全无疑具有重要意义。首先,该案裁定指出信用证关系中的各有关当事人处理的仅是单据,不是与单据有关的货物、服务或其他行为,因此判断中介行过错行为所致损失的唯一法律依据必须是信用证本身,而不能根据基础合同计算损失,清晰地揭示了信用证独立性原则的内涵。其次,该案裁定在明确银行义务的同时,运用可预见性原则,确定赔偿损失范围不超过信用证项下未付款金额及利息,保证了赔偿责任范围的可预期性,具有统一裁判规则、填补法律空白的重要作用,对今后“一带一路”建设中发生的类似信用证纠纷案件有很强的借鉴意义。
Case No. 4 案例四
Abiding by Obligations of Enforcing the Arbitral Award as Prescribed in the New York Convention and Creating a Quality Legal Environment in Pilot Free Trade Zones 恪守《纽约公约》裁决执行义务营造自贸试验区优质法治环境
--Siemens International Trade (Shanghai) Co., Ltd. v. Shanghai Golden Landmark Co., Ltd. (Case concerning application for recognition and enforcement of a foreign arbitral award) --西门子国际贸易(上海)有限公司与上海黄金置地有限公司申请承认和执行外国仲裁裁决案
[Basic Facts] 【基本案情】
On September 23, 2005, Shanghai Golden Landmark Co., Ltd. (hereinafter referred to as “Golden Landmark Company”) and Siemens International Trade (Shanghai) Co., Ltd. (hereinafter referred to as “Siemens Company”) concluded a contract on supply of goods by means of invitation for bids. It was stipulated in the contract that Siemens Company should deliver equipment to the construction site before February 15, 2006 and if there was any dispute between the parties, they should submit it to the Singapore International Arbitration Centre for arbitral settlement. During the performance of the contract, the parties had a dispute. Golden Landmark Company initiated arbitration in the Singapore International Arbitration Centre and requested termination of the contract and suspension of payment for goods. In the arbitration procedure, Siemens Company initiated a counterclaim and requested full payment for goods, interest, and compensation for other losses. In November 2011, the Singapore International Arbitration Centre issued an arbitral award, in which the arbitration claims of Golden Landmark Company were dismissed and the arbitration counterclaim of Siemens Company was supported. Golden Landmark Company made a partial payment and it still owed the payment for goods and the interest thereof under the arbitral award, amounting to CNY5,133,872.3. In accordance with the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (namely, the New York Convention), Siemens Company instituted a claim in the No. 1 Intermediate People's Court of Shanghai Municipality for recognition and enforcement of the arbitral award issued by the Singapore International Arbitration Centre. Golden Landmark Company contended that: The arbitral award should not be recognized and enforced on the ground that both parties were Chinese legal persons and the place where the contract was performed was also within the territory of China. The civil relationship involved had no foreign-related factors. The agreement between both parties on submitting any dispute to a foreign arbitration institution was invalid. If the arbitral award involved was recognized and enforced, it would violate the public policy of China. 2005年9月23日,黄金置地公司与西门子公司通过招标方式签订了一份货物供应合同,约定西门子公司应于2006年2月15日之前将设备运至工地,如发生争议须提交新加坡国际仲裁中心进行仲裁解决。双方在合同履行中发生争议。黄金置地公司在新加坡国际仲裁中心提起仲裁,要求解除合同、停止支付货款。西门子公司在仲裁程序中提出反请求,要求支付全部货款、利息并赔偿其他损失。2011年11月,新加坡国际仲裁中心作出裁决,驳回黄金置地公司的仲裁请求,支持西门子公司的仲裁反请求。黄金置地公司支付了部分款项,尚欠仲裁裁决项下未付款及利息合计人民币5133872.3元。西门子公司依据《承认与执行外国仲裁裁决公约》即《纽约公约》,向上海市第一中级人民法院请求承认和执行新加坡国际仲裁中心作出的仲裁裁决。黄金置地公司抗辩认为,应不予承认和执行该仲裁裁决,理由为:双方当事人均为中国法人,合同履行地也在国内,故案涉民事关系不具有涉外因素,双方约定将争议提交外国仲裁机构仲裁的协议无效,若承认和执行案涉裁决将有违中国的公共政策。
[Adjudication] 【裁判结果】
Upon level-by-level reports to the Supreme People's Court and obtaining a reply from the Supreme People's Court, the No. 1 Intermediate People's Court of Shanghai Municipality ruled to recognize and enforce the arbitral award involved in accordance with the provisions of the New York Convention. With respect to validity of the arbitration clause that any dispute in this case should be submitted to a foreign arbitration institution for arbitration, the key was to determine whether the contractual relationship in dispute involved any foreign-related factors. If there was any foreign-related factor, the arbitration clause was valid, vise versa. In view of the actual situations of subjects involved in the contract in this case and characteristics of performance of the contract, in accordance with the provisions of item 5 of Article 1 the Interpretation (I) of the Supreme People's Court on Several Issues concerning the Application of the Law of the People's Republic of China on Application of Law for Foreign-Related Civil Relationship, it may be determined that the contractual relationship in dispute was a foreign-related civil legal relationship on the following grounds: First, although both Siemens Company and Golden Landmark Company were Chinese legal persons and the place of registration for both of them was China (Shanghai) Pilot Free Trade Zone, both of them were exclusively foreign-owned enterprises in nature, and both of them were closely related to foreign investors. Second, the characteristics of performance of the contract in this case involved foreign-related factors, the equipment involved was first delivered from a foreign country to the pilot free trade zone for bonded supervision and then the formalities for customs clearance and tax payment were handled at appropriate time according to the needs of performance of the contract. The equipment involved was circulated from the pilot free trade zone to the outside place. At this point, the formalities for import of the goods have been completed. Therefore, the circulation of the subject matter of the contract had some characteristics of international sales of goods. The arbitration clause involved was valid. In addition, there was no conflict between the content of the arbitral award involved and the public policy of China. For this reason, recognition and enforcement of the arbitral award involved did not violate the public policy of China. In the meantime, the ruling also specified that Golden Landmark Company actually participated in all arbitration procedure, claimed that the arbitration clause was valid, and partially performed obligations as determined in the arbitral award after the issuance of such arbitral award. Under such circumstance, the application of Golden Landmark Company for refusing recognition and enforcement of the arbitral award involved on the ground that the arbitration clause was invalid violated the acknowledged legal principles of estoppel, good faith, and justice and reasonableness. Therefore, the claim of Golden Landmark Company should not be supported.
......
 上海市第一中级人民法院经逐级报告至最高人民法院并获答复后,认为根据《纽约公约》的规定,裁定承认和执行涉案仲裁裁决。关于仲裁条款约定本案争议提交外国仲裁机构仲裁是否有效的问题,关键在于认定系争合同关系是否具有涉外因素,如有涉外因素则仲裁条款有效,反之则无效。综观本案合同所涉的主体、履行特征等方面的实际情况,根据《最高人民法院关于适用〈中华人民共和国涉外民事关系法律适用法〉若干问题的解释(一)》第一条第五项的规定,可以认定系争合同关系为涉外民事法律关系,具体理由为:一是西门子公司与黄金置地公司虽然都是中国法人,但注册地均在上海自贸试验区区域内,且其性质均为外商独资企业,与其境外投资者关联密切。二是本案合同的履行特征具有涉外因素,案涉设备系先从中国境外运至自贸试验区内进行保税监管,再根据合同履行需要适时办理清关完税手续、从区内流转到区外,至此货物进口手续方才完成,故合同标的物的流转过程也具有一定的国际货物买卖特征。故案涉仲裁条款有效。且仲裁裁决内容亦没有与中国公共政策抵触之处,因此承认与执行该仲裁裁决不违反中国的公共政策。同时,该裁定还指出黄金置地公司实际参与全部仲裁程序,主张仲裁条款有效,并在仲裁裁决做出后部分履行了裁决确定的义务。在此情况下,其又以仲裁条款无效为由,主张拒绝承认与执行涉案仲裁裁决的申请,不符合禁止反言、诚实信用和公平合理等公认的法律原则,故对其主张不予支持。
......

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