|
|
|
Wuhan Municipal Coal Gas Corp. v. Chongqing Measuring Instrument Factory (A case involving disputes over a contract on the transfer of gas meter assembly line technology and a contract on the supply of spare parts of gas meters)
|
|
武汉市煤气公司诉重庆检测仪表厂煤气表装配线技术转让合同、煤气表散件购销合同纠纷案
|
|
|
|
Wuhan Municipal Coal Gas Corp. v. Chongqing Measuring Instrument Factory (A case involving disputes over a contract on the transfer of gas meter assembly line technology and a contract on the supply of spare parts of gas meters)
(A case involving disputes over a contract on the transfer of gas meter assembly line technology and a contract on the supply of spare parts of gas meters)
武汉市煤气公司诉重庆检测仪表厂煤气表装配线技术转让合同、煤气表散件购销合同纠纷案
|
|
|
|
|
|
|
Wuhan Municipal Coal Gas Corp. v. Chongqing Measuring Instrument Factory
(A case involving disputes over a contract on the transfer of gas meter assembly line technology and a contract on the supply of spare parts of gas meters) | | 武汉市煤气公司诉重庆检测仪表厂煤气 |
| |
装配线技术转让合同、煤气表散件购销合同纠纷案 |
BASIC FACTS | |
|
Plaintiff (counterclaim defendant): Wuhan Municipal Coal Gas Corporation | |
原告（反诉被告）：武汉市煤气公司。 |
Legal representative: Chen Ziman, manager of this corporation. | |
法定代表人：陈子满，该公司经理。 |
Attorney: Liu Xuefeng, deputy manager of this corporation. | |
委托代理人：刘学锋，该公司副经理。 |
Attorney: Zhang Wenlai, lawyer of Wuhan City Law Office | |
委托代理人：张文来，武汉市律师事务所律师。 |
Defendant (counterclaim plaintiff): Chongqing Measuring Instrument Factory | |
被告（反诉原告）：重庆检测仪表厂。 |
Legal representative: Zhang Benyan, director of this factory. | |
法定代表人：张本炎，该厂厂长。 |
Attorney: Liu Hong, officer of this factory. | |
委托代理人：刘虹，该厂干部。 |
Attorney: Ke Ruiqing, lawyer of Chongqing No.3 Law Office. | |
委托代理人：柯瑞清，重庆市第三律师事务所律师。 |
PROCEDURAL POSTURE | |
|
In respect of the disputes over the contract on the transfer of gas meter assembly line technology and the contract on the supply of spare parts of gas meters with the defendant, Chongqing Measuring Instrument Factory (the “Instrument Factory”), the plaintiff, Wuhan Municipal Coal Gas Corporation (“Gas Corp.”), instituted an action in the Intermediate People's Court of Wuhan of Hubei Province. | |
原告武汉市煤气公司（以下简称煤气公司）因与被告重庆检测仪表厂（以下简称仪表厂）煤气表装配线技术转让合同、煤气表散件购销合同纠纷案，向湖北省武汉市中级人民法院提起诉讼。 |
The plaintiff, Gas Corp., alleged that: in September, 1987, the plaintiff entered into a Cooperative Contract on the Transfer of J2.5 Gas Meter Assembly Line Technology, a Contract on the Supply of J2.5 Gas Meter Spare Parts and their supplementary agreements with the defendant. After the signing of the contracts, the defendant failed to fully perform the contract on the technology transfer, failed to provide the plaintiff with the drawings, molds and clamps of J2.5 reverse gas meters, failed to assist the plaintiff in assembling 500 qualified reverse meters, and failed to provide the plaintiff with an adequate quantity of J2.5 gas meter spare parts and fittings, which had caused that the J2.5 gas meter assembly line could not be put into use; meanwhile, the defendant did not fully supply the spare parts to the plaintiff as agreed on in the contract on the supply of gas meter spare parts. Therefore, the plaintiff requested the court to order that: (a) the J2.5 gas meter assembly line transferred by the defendant to the plaintiff should be returned, and the defendant should compensate the plaintiff for its investment losses arising from the J2.5 gas meter assembly line project; and (b) the defendant should pay a default fine of 1.0314 million yuan incurred by the plaintiff due to its inability to make delivery and a default fine of 257,850 yuan incurred by the plaintiff due to its late delivery. | |
原告煤气公司诉称：原告与被告于１９８７年９月分别签订了《关于Ｊ２．５煤气表装配线技术转让协作合同》和《关于Ｊ２．５煤气表散件供应合同》及被协议，协议签订后，被告未全面履行技术转让合同，未向原告提供Ｊ２．５煤气表反向表的图纸及工模夹具等，未帮助原告装配出合格的５００只反向表，未向原告提供足够数量的Ｊ２．５煤气表散件和配件，导致Ｊ２．５煤气表生产线无法投入使用；同时，被告未按照煤气表散件供应合同的约定，向原告足额供应散件。故请求法院判令：１、退回被告转让给原告的Ｊ２．５煤气表装配线，赔偿原告在Ｊ２．５煤气表装配线工程中的投资损失；２、由原告支付不能交货的违约金１０３．１４万元，承担逾期交货违约金２５．７８５万元。 |
The defendant argued that: the contract on the transfer of assembly line technology signed by the two parties had been basically performed, and the claims of the plaintiff on the return of assembly line and the compensation for its investment losses were unfounded; the failure of the defendant to fully perform the contract on the supply of gas meter spare parts was due to an unpredictable and unpreventable change of situation, which disabled the defendant to continue performing the contract. For such a change of situation, the defendant had no fault, and should not be liable for breach of contract. The defendant consulted with the plaintiff many times about contract modification, but the plaintiff was not cooperative. Therefore, the defendant filed a counterclaim that: the plaintiff should pay a default fine of 117,501.28 yuan for the late payment of the technical data fee and equipment fee. | |
被告仪表厂答辩称：双方签订的装配线技术转让合同已基本履行，原告提出退还装配线和赔偿其投资损失的诉讼请求是不能成立的；被告未能完全履行煤气表散装件供应合同，是由于发生了无法预料和无法防止的客观情势变更，使被告丧失了继续履行合同的能力，对此情势变更，被告主观上无过错，故不应承担违约责任。被告曾多次与原告协商变更合同，但原告不予协作而酿成纠纷。同时提出反诉：要求原告承担逾期支付技术资料费、设备费的违约金１１７５０１．２８元。 |
Through a trial, the Intermediate People's Court of Wuhan found that: in September 1987, in Wuhan, the plaintiff, Gas Corp., and the defendant, Instrument Factory, entered into a Cooperative Contract on the Transfer of J2.5 Gas Meter Assembly Line Technology and its supplementary agreement. They agreed that: the Instrument Factory should transfer the J2.5 gas meter assembly line technology to the Gas Corp., provide all molds and clamps, special equipment and a full set of technical drawings, build a J2.5 assembly line with a production capacity of 50,000 a year, and instruct, in technology, the Gas Corp. to assemble 1,000 qualified forward meters and 500 reverse meters. The Instrument Factory should give priority to meeting the production needs of the assembly line of the Gas Corp., provide an adequate quantity of J2.5 gas meter spare parts and fittings (excluding raw and auxiliary materials), guarantee the quality of spare parts, and be responsible for training 10-15 personnel of the Gas Corp for the maintenance and inspection of the assembly line. The Gas Corp. should pay the Instrument Factory 500,000 yuan of data fees for all drawings, 200,000 yuan of fees for molds and clamps, special equipment and detecting equipment (excluding freight), and 100,000 yuan of technical cooperation fees, that is, 800,000 yuan in total. Within two months after the effective date of this contract, the Gas Corp. should pay the Instrument Factory 90% of the technical data fees, that is, 450,000 yuan, and the Instrument Factory should provide the Gas Corp. with all data within 10 days after receiving the payment; and should pay the remaining 10% after the trial production and verification by the Gas Corp. that all data had been complete. The period of validity of this contract should be three years. On October 29 of the same year, the two parties also signed a Meeting Minute, further agreeing on matters that were not included in the contract on the assembly line, and afterwards the two parties began performing the contract. From November 11, 1987 to June 1988, the Instrument Factory delivered to the Gas Corp. the drawings and technical data, and provided the molds and clamps and related parts and fittings. The Gas Corp. paid the 90% of data fees for all drawings, that is, 450,000 yuan and 70% of fees for molds and clamps and equipment, that is, 140,000 yuan. In April 1988, after the Gas Corp. paid 100,000 yuan of technical cooperation fees, the Instrument Factory conducted, in Chongqing, the technical training of 22 personnel sent by the Gas Corp. In June of the same year, the two parties conducted the inspection and acceptance, and signed four agreements and reports on the inspection and acceptance in relation to the contract on the transfer of J2.5 gas meter assembly line technology. Soon afterwards, the Gas Corp. paid the Instrument Factory the remaining 10% of the data fees for all drawings, that is, 50,000 yuan, and 50,000 yuan of the 30% of the fees for molds and clamps, etc. (the remaining 10,000 yuan would be paid in a slump sum after the expiry of the contract). So far, the Gas Corp. had paid the Instrument Factory 790,000 yuan of the 800,000 yuan of all technology transfer fees. The transfer of the forward meter technology under the cooperative contract on technology transfer and its supplementary agreement had been basically performed, while the transfer of the reverse meter technology failed. On May 6, 1989, the Gas Corp. sent a letter to the Instrument Factory, requiring the full performance of this contract and its supplementary agreement, while the Instrument Factory considered that it had fully performed the contract and the reverse meter technology was not a contractual obligation. | |
武汉市中级人民法院经审理查明：１９８７年９月，原告煤气公司与被告仪表厂在武汉签订了一份《关于Ｊ２．５煤气表装配线技术转让协作合同》及补充协议，约定：仪表厂向煤气公司转让Ｊ２．５煤气表装配技术，提供装配线上全部工模夹具、专用设备和全套技术图纸资料，为煤气公司建立一条年生产５万只Ｊ２．５煤气表装配线，并从技术上指导煤气公司装配出１０００只合格正向表和５００只反向表；仪表厂应优先满足煤气公司装配线的生产需要，提供足够数量的Ｊ２．５煤气表散件和配件（不包括原辅材料），确保散件质量，并负责培训煤气公司装配维修检验人员１０－１５名。煤气公司应付给仪表厂全部图纸资料费人民币５０万元，工模夹具、专用设备及检验设备费人民币２０万元（不含运费），技术协作费１０万元，合计８０万元。在合同生产后２个月内，煤气公司向仪表厂支付技术资料费的９０％，即４５万元，款到后１０天内仪表厂向煤气公司提供全部资料，在试生产和煤气公司核实全部资料齐全后，再支付１０％的余款。合同的有效期为３年。同年１０月２９日，双方又签订了《会议纪要》，对装配合同中的未尽事宜进一步作了约定，随后双方开始履行合同。仪表厂于１９８７年１１月至１９８８年６月，先后向煤气公司移交了图纸和技术资料，并提供了工模夹具及有关零配件；煤气公司先后支付了图纸资料费的９０％，即４５万元，工模夹具设备费的７０％，即１４万元。１９８８年４月，煤气公司支付了技术协作费１０万元后，仪表厂在重庆对煤气公司选派的２２名人员进行了技术培训。同年６月，双方进行验收并签订了有关Ｊ２．５煤气表装配线技术转让合同的４个验收协议和报告。随即，煤气公司向仪表厂支付了图纸资料费的１０％余款，即５万元，工模夹具费等的３０％余款中的５万元（余款１万元在合同期满后再一次性支付）。至此，煤气公司已向仪表厂支付了全部技术转让费８０万元中的７９万元。《技术转让协作合同》及其补充协议中规定的正向表技术转让基本履行完毕，反向表技术转让未能履行。１９８９年５月６日，煤气公司致函仪表厂，要求全面履行合同书及补充协议，仪表厂认为已按合同履行完毕，反向表技术不属其约定义务。 |
Whiling signing the above technology transfer contract and its supplementary agreement, the two parties also entered into a Contract on the Supply of J2.5 Gas Meter Spare Parts and its supplementary agreement. They agreed that: the Instrument Factory should supply 70,000 sets of homemade J2.5 gas meter spare parts to the Gas Corp. Among them, 30,000 sets should be supplied in 1998 (60% of them should be forward meter spare parts, which should be supplied on average by month since April 25 that year; 40% of them should be reverse meter spare parts, which should be supplied on average by month since September 25 that year); and 40,000 sets should be supplied in 1989 (40% of them should be reverse meter spare parts), which should be supplied on average by month, with a unit price of 57.3 yuan (including packing fee) and a total price of 4.011 million yuan, and the payments should be made through bank collection within 10 days after the goods arrived and were inspected and accepted by the Gas Corp. The contract also provided for the product quality, transport mode, product package, default liability, etc. After that, on May 6, June 23 and August 19, 1988, respectively, the Instrument Factory delivered, in three times, 10,000 sets of forward meter spare parts to the Gas Corp., and after actually making payments for the goods and freights of 525,364.35 yuan, the Gas Corp. refused to pay 50,287.14 yuan on the ground that the Instrument Factory had supplied inadequate and unqualified goods, and also owed 3,597.84 yuan of payment for material purchase to the Instrument Factory. On November 23 of the same year, the Gas Corp. sent a letter to the Instrument Factory, requiring the Instrument Factory to perform the contract on the supply of spare parts. On December 20 of the same year, the Instrument Factory replied to the Gas Corp, requiring the rise of price for the spare parts on the ground of rapid market changes and hike of commodity prices. On March 25, 1989, the Instrument Factory sent to the Gas Corp. a Contact Letter for Consultation Again about the Price for Spare Parts of J2.5 Gas Meters, stating that the cost of a set of spare part had increased to 79.22 yuan, the unit price verified by the pricing authority was 83 yuan, and it would like to supply the spare parts at a unit price of 75.50 by possibly incurring certain economic losses, as the final price for the modification or rescission of the supply contract signed by them, without regard to any profits. The Gas Corp. insisted that the Instrument Factory perform the contract as per the original contractual price, while the Instrument Factory stopped the supply of gas meter spare parts to the Gas Corp. Therefore, disputes arose between the two parties.
．．．．．． | |
双方在签订上述技术转让合同及其补充协议的同时，还签订了一份《关于Ｊ２．５煤气表散件供应合同》及补充协议，约定：由仪表厂供给煤气公司国产Ｊ２．５煤气表散件７万套。其中１９８８年供３万套（６０％正向表散件，从当年４月２５日起每月平均供货；４０％反向表散件，从当年９月２５日起每月平均供货）；１９８９年供４万套（４０％为反向表散件），按月平均供货，每套散件单价５７．３元（含包装费），总价款为４０１．１万元，货到经煤气公司验收后１０日内由银行托收承付。合同还对产品质量、运输方式、产品包装及违约责任等作了约定。此后，仪表厂于１９８８年５月６日、６月２３日、８月１９日三次向煤气公司发运正向表散件１万套，煤气公司实际承付货款及运费５２５３６４．３５元后，以仪表厂供货数量不足、质量不合格为由拒付５０２８７．１４元，另欠仪表厂购材料款３５９７．８４。同年１１月２３日，煤气公司向仪表厂发函要求仪表厂履行散件供应合同。仪表厂于同年１２月２０日复函煤气公司，以市场变化过快，物价上涨为由要求散件价格上调。１９８９年３月２５日，仪表厂向煤气公司发出《关于再次磋商Ｊ２．５煤气表散件价格的联系函》，提出在散件的成本上涨到每套７９．２２元，物价部门核实的价格为每套８３元的情况下，愿意不计利润并尽可能承担一定的经济损失，以Ｊ２．５煤气表散件每套７５．５０元作为变更或解除双方签订的煤气表散件供应合同的最后报价。煤气公司仍要求仪表厂按原合同价格履行，仪表厂则停止向煤气公司供应煤气表散件，双方因此发生纠纷。
．．．．．． |
|
Dear visitor, as a premium member of this database, you will get complete access to all content.Please go premium and get more.
1. To become a premium member, please call 400-810-8266 Ext. 171.
2. Binding to the account with access to this database.
3. Apply for a trial account.
4. To get instant access to a document, you can Pay Amount 【￥500.00】 for your single purchase. | |
您好：您现在要进入的是北大法宝英文库会员专区。
如您是我们英文用户可直接 登录，进入会员专区查询您所需要的信息；如您还不是我们 的英文用户；您可通过网上支付进行单篇购买，支付成功后即可立即查看本篇内容。
Tel: +86 (10) 82689699, +86 (10) 82668266 ext. 153
Mobile: +86 13311570713
Fax: +86 (10) 82668268
E-mail:info@chinalawinfo.com
|
| | | | | | | | |
Scan QR Code and Read on Mobile
|
|
|
|
|
|
Message: Please kindly comment on the present translation.
|
|
|
|
|
|
|
|
|
Translations are by lawinfochina.com, and we retain exclusive copyright over content
found on our website except for content we publish as authorized by respective copyright
owners or content that is publicly available from government sources.
Due to differences in language, legal systems, and culture, English translations
of Chinese law are for reference purposes only. Please use the official Chinese-language
versions as the final authority. Lawinfochina.com and its staff will not be directly
or indirectly liable for use of materials found on this website.
We welcome your comments and suggestions, which assist us in continuing to improve
the quality of our materials as we dynamically expand content.
|
|
|
|
|
|