Kuchifuku Foods Company v. Industrial Bank of Korea and Nuclear Power Plant Sub-branch of the Bank of China
(Case on the Dispute over Letter of Credit) | | 口福食品公司诉韩国企业银行、中行核电站支行信用证纠纷案 |
Judgment abstract: | |
【裁判摘要】 |
Letter of credit fraud refers to a situation where a letter of credit beneficiary, without any cargo or the quality of the cargo is too inferior to deliver, forges one or more documents required under the letter of credit by itself or maliciously collaborating with other person, and fraudulently obtains payment under the letter of credit from the issuing bank, causes financial losses to the applicant of the letter of the credit. If the issuing bank has no evidence to prove that the documents under the letter of credit are forged by the beneficiary itself or maliciously collaborating with other person with an aim to fraudulently obtain the payment under the letter of credit, and such behavior causes substantial loss and damage to the applicant of the letter of credit, it cannot reject payment under the letter of credit by reason of the fraud exception principle of letter of credit. | |
信用证欺诈，是指信用证受益人在根本无货或者质量低劣无法交货的情况下，单独或与他人恶意串通，伪造符合信用证要求的一种或几种单据，从开证行骗取信用证项下货款，从而使开证申请人遭受经济损失的行为。开证行如无证据证明信用证项下单据是受益人单独或与他人恶意串通伪造的，目的是从开证行骗取信用证项下款项，且该伪造行为已经给开证申请人造成了实质性损害，不能援引信用证欺诈例外原则拒付信用证项下款项。 |
BASIC FACTS | |
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Plaintiff: Lianyungang Kuchifuku Foods Co., Ltd., located at Lianyun District, Lianyungang City, Jiangsu Province. | |
原告：连云港口福食品有限公司，住所地：江苏省连云港市连云区。 |
Legal Representative: Weng Jun, board chairman of the company. | |
法定代表人：翁军，该公司董事长。 |
Defendant: Industrial Bank of Korea (Head Office Soul), resided at Chung-Ku, Seoul, Korea | |
被告：韩国中小企业银行（汉城总行），住所地：韩国汉城中区。 |
Legal Representative: Kim Jong Chang, board chairman of the bank | |
法定代表人：金钟昶，该行董事长。 |
Defendant: Lianyungang Nuclear Power Plant Sub-branch of Bank of China, located at Lianyun District, Lianyungang City, Jiangsu Province. | |
被告：中国银行连云港市核电站支行，住所地：江苏省连云港市连云区。 |
Chief: Lou Peiyun, chief of the sub-branch. | |
负责人：娄培云，该支行行长。 |
The plaintiff Lianyungang Kuchifuku Foods Co., Ltd. (Hereinafter referred to as Kuchifuku Foods Company) brought a lawsuit to the Intermediate People's Court of Nanjing City, Jiangsu Province against the defendant, Industrial Bank of Korea (Head Office Soul) (hereinafter referred to as Industrial Bank of Korea) and the defendant, Lianyungang Nuclear Power Plant Sub-branch of the Bank of China (hereinafter referred to as Nuclear Power Plant Sub-branch of BOC) over the dispute of letter of credit. | |
原告连云港口福食品有限公司（以下简称口福食品公司）因与被告韩国中小企业银行汉城总行（以下简称韩国企业银行）、中国银行连云港市核电站支行（以下简称中行核电站支行）发生信用证纠纷，向江苏省南京市中级人民法院提起诉讼。 |
The plaintiff Kuchifuku Foods Company alleged that: as the beneficiary of an irrevocable letter of credit issued by the defendant, Industrial Bank of Korea, the plaintiff had shipped the cargos in time in accordance with the requirements of the letter of credit and submitted a full set of the documents under the letter of credit to the defendant, Nuclear Power Plant Sub-branch of BOC. Upon examination, Nuclear Power Plant Sub-branch of BOC confirmed the compliance between documents and terms of a credit, and the conformity of documents; and sent the full set of documents to Industrial Bank of Korea, who refused to pay without any reason. Industrial Bank of Korea's refusal of payment violated the provisions of the Uniform Customs and Practice for Documentary Credits (International Chamber of Commerce, publication No.500, hereinafter referred to as UCP500), thus the plaintiff pleaded the court to adjudicate that Industrial Bank of Korea should undertake the obligations of a issuing bank, pay to the plaintiff the price for goods, which is USD110,500 under the letter of credit and the corresponding interests, and bear the legal cost of the case. As the negotiating bank, Nuclear Power Plant Sub-branch of BOC shall undertake joint and several liabilities. | |
原告口福食品公司诉称：作为被告韩国企业银行开出的一份不可撤销信用证的受益人，原告已经按信用证要求及时将货物装船，并向被告中行核电站支行提交了信用证项下全套单据。中行核电站支行经审查，确认单证一致、单单一致后，将全套单据寄给韩国企业银行，却遭韩国企业银行无理拒付。韩国企业银行的拒付行为，违反《跟单信用证统一惯例》（国际商会第500号出版物，以下简称UCP500 ）的规定，请求判令韩国企业银行承担开证行义务，给原告支付信用证项下货款110500美元及相应利息，并负担本案诉讼费用；作为议付行，中行核电站支行对此应承担连带责任。 |
The evidences submitted by the plaintiff were as follows: | |
原告口福食品公司提交以下证据： |
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| 1. An irrevocable letter of credit No. M04E5204NS00484 and the Chinese version, which prove the existence of legal relationship of letter of credit between the parties concerned; | | 1.号码为M04E5204NS00484的不可撤销信用证及中译本，用以证明各方当事人之间存在信用证法律关系； |
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| 2. A full set of documents and the Chinese versions under the above-mentioned letter of credit, which prove that Kuchifuku Foods Company had submitted a full set of documents as required; | | 2.上述信用证项下的全套单据及中译本，用以证明口福食品公司已按要求提交了全套单据； |
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| 3. Letter of dishonor and the Chinese version, which prove that the payment for goods under the letter of credit had been refused by Industrial Bank of Korea; | | 3.拒付函及中译本，用以证明信用证项下货款已被韩国企业银行拒付； |
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| 4. Lawyer's letter, which proves that Kuchifuku Foods Company could not accept the dishonor reasons provided by Industrial Bank of Korea; | | 4.律师函，用以证明口福食品公司不能接受韩国企业银行提出的拒付理由； |
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| 5. 3 reply letters to the letter of dishonor and the Chinese versions, which prove that Nuclear Power Plant Sub-branch of BOC also held that the dishonor reasons provided by Industrial Bank of Korea could not be established; | | 5.对拒付函的3份回函及中译本，用以证明中行核电站支行也认为韩国企业银行提出的拒付理由不成立； |
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| 6. Documentary bill and remitting covering letter, which prove that Nuclear Power Plant Sub-branch of BOC had asked, in the name of negotiating bank, the issuing bank - Industrial Bank of Korea - to repay the amount under the letter of credit; | | 6.跟单汇票寄单面函，用以证明中行核电站支行已经以议付行名义要求开证行韩国企业银行偿付信用证项下款项； |
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| 7. Documentary bill of exchange and the Chinese version, which prove that Nuclear Power Plant Sub-branch of BOC had endorsed the bill of exchange and sent it to the issuing bank, thus had exercised the right of bill in the name of negotiating bank; | | 7．跟单汇票及中译本，用以证明中行核电站支行在汇票上背书并将其交给开证行，已以议付行名义行使了票据权利； |
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| 8. Receipts of verification fee and postage, which prove that Nuclear Power Plant Sub-branch of BOC had examined the full set of documents submitted by Kuchifuku Foods Company and collected the verification fee thereof; | | 8.验单费、邮寄费收据，用以证明中行核电站支行已对口福食品公司提交的全套单据进行过审查，并因此收取了验单费； |
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| 9. The charging rates of the international settlement business of Bank of China, which prove that Nuclear Power Plant Sub-branch of BOC collected fees according to the standards of the negotiating bank and thus shall undertake the responsibilities of the negotiating bank. | | 9.中国银行国际结算业务收费标准，用以证明中行核电站支行是按议付行标准收取费用，因此应承担议付行责任。 |
The defendant Nuclear Power Plant Sub-branch of BOC argued that it did nothing more than mailing the documents submitted by the plaintiff, which means that it acted as a remitting bank instead of a negotiating bank. The plaintiff had no factual basis and legal basis to require it to undertake joint and several liabilities on the ground that it had acted as a negotiating bank. | |
被告中行核电站支行答辩称：在本案信用证关系中，本被告只是对原告提交的单据做过寄单处理，是寄单行而非议付行。原告以本被告是信用证议付行为由，要求本被告承担连带责任，没有事实根据与法律依据。 |
The defendant Industrial Bank of Korea did not submit any evidence within the time limit set by the court for the presenting of evidence and was not present in court in the first instance, it claimed in the bill of defense submitted after the court hearing that: as there was not any law on the letter of credit in China, it has to make the defense in accordance with the provisions of UCP500. There were discrepancies in the documents under the letter of credit submitted by the plaintiff; there existed such fraudulent acts as antedated bill of lading and forged bills, etc, thus according to the international practice of treating fraud as an exception, it was entitled to refuse to pay the price of the goods under the letter of credit. | |
被告韩国企业银行在法院限定的举证期限内未提交证据，一审时也未到庭参加诉讼，其庭后提交的答辩状称：由于中国没有信用证法律，本被告根据UCP500的规定进行答辩。原告提交的信用证项下单据存在不符点；且还有倒签提单、伪造票据等欺诈行为，依照欺诈例外的国际惯例，本被告有权拒付信用证项下货款。 |
The Industrial Bank of Korea submitted following evidences and pleaded the court to conduct cross-examination: | |
被告韩国企业银行提交以下证据，要求法院组织质证： |
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| 1. An irrevocable letter of credit No. M04E5204NS00484 and a full set of documents and bills of exchange under the letter of credit, which prove that the remitting bank appearing on the bill of exchange filled in by Kuchifuku Foods Company was “INDUSTRIAL BANK OF KOREA SEOUL（HEAD OFFICE SEOUL）”, which was inconsistent with the remitting bank of “INDUSTRIAL BANK OF KOREA （HEAD OFFICE SEOUL） SEOUL” in the letter of credit; the descriptions of the name of goods on the documents were inconsistent with each other; there was a unit of weight on the packing list, which did not exist on the invoice; | | 1.号码为M04E5204NS00484的不可撤销信用证和该信用证项下全套单据、汇票，用以证明口福食品公司在汇票上填写的汇款行是“INDUSTRIAL BANK OF KOREA SEOUL（HEAD OFFICE SEOUL）”，与信用证上汇款行“INDUSTRIAL BANK OF KOREA （HEAD OFFICE SEOUL） SEOUL”的名称不一致；各单据对商品品名的描述不一致，装箱单中有重量单位而发票上却没有等不符点问题； |
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| 2. A photocopy of the duplicate of the bill of lading issued by COSCO Container Line, Ltd. (hereinafter referred to as COSCO), which proves that the actual date of shipment of the cargos involved in the case was June 1st, 2002, while on the bill of lading under the letter of credit submitted by Kuchifuku Foods Company, the date of shipment was May 31st, 2002; | | 2.中远集装箱运输有限公司（以下简称中远公司）签发的提单副本复印件，用以证明涉案货物实际装船日期是2002年6月1日，而口福食品公司提交的信用证项下提单却将装船日期倒签为2002年5月31日； |
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| 3. Kuchifuku Foods Company's materials for registration with the industrial and commerce bureau, which prove that the correct English name of Kuchifuku Foods Company should be “LIANYUNGANG KUCHIFUKU FOODS CO., LTD.” rather than “LIANYUNGAND KUCHIFUKU FOODS CO.LTD” as appearing on the negotiating bill under the letter of credit submitted by Kuchifuku Foods Company; | | 3.口福食品公司的工商注册材料，用以证明口福食品公司正确的英文名称是“LIANYUNGANG KUCHIFUKU FOODS CO.LTD”，而口福食品公司提交的信用证议付单据上却写成“LIANYUNGAND KUCHIFUKU FOODS CO.LTD”； |
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| 4. The sales contract under the letter of credit, which proves that the seal of Kuchifuku Foods Company was different from that on the negotiating bill submitted by the company; | | 4.信用证项下的买卖合同，用以证明口福食品公司的印章与其提交议付票据上使用的印章不一致； |
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| 5. The documents under another letter of credit with Kuchifuku Foods Company as the beneficiary, which prove that the name and seal previously used by Kuchifuku Foods Company were different from those under the letter of credit of the present case, thus the documents and seal under the letter of credit of the present case were forged by Kuchifuku Foods Company. | | 5．以口福食品公司作为受益人的另一信用证项下单据，用以证明口福食品公司以前使用的名称和印章与本案信用证项下的名称和印章不同，因而本案信用证项下的票据及印章是口福食品公司伪造的。 |
Both Kuchifuku Foods Company and Nuclear Power Plant Sub-branch of BOC had argued that, as Industrial Bank of Korea submitted the bill of defense and evidences after the expiration of the statutory period for defense and presenting proof, it shall be deemed as it had waived its right to defense and the right to produce evidence, thus the evidences submitted by Industrial Bank of Korea shall not be cross-examined. At the same time, Kuchifuku Foods Company made the following explanations: 1. in the letter of credit issued by Industrial Bank of Korea, the name of the remitting bank appeared for three times, twice of which was “INDUSTRIAL BANK OF KOREA SEOUL （HEAD OFFICE SEOUL）”, which was consistent with the name of the remitting bank on its bills of exchange, and the name “INDUSTRIAL BANK OF KOREA（HEAD OFFICE SEOUL）SEOUL” appeared only once. In addition, in the bill of defense produced by Industrial Bank of Korea, the name of the remitting bank was consistent with that in the bills of exchange it issued. Therefore, even if there was a mistake in the name of the remitting bank, it was made by Industrial Bank of Korea. 2. According to the Chinese law, the name of a Chinese enterprise shall be the name registered with the industry and commerce bureau, the foreign name was not its legal name, thus the present company did not violate the Chinese law by miswriting “G” as “D” in the foreign name of its own enterprise. 3. Industrial Bank of Korea attempted to prove the antedating of its bill of lading with the a photocopy of the duplicate of the bills of lading it submitted after the court hearing, but as the photocopy was inconsistent with the original bills of lading submitted to the court by both parties, and the source of the photocopy was unidentified, they were defective as a evidence in form, thus it could not prove the antedating of the bill of lading. | |
原告口福食品公司和被告中行核电站支行均提出，由于被告韩国企业银行是在法定答辩和举证期已过后才提交答辩状与证据，应视为其放弃了答辩与举证权，故对其提交的证据不予质证。同时，口福食品公司还作如下说明：1.在韩国企业银行开具的信用证中，汇款行的名称共出现3处，其中两处使用“INDUSTRIAL BANK OF KOREA SEOUL （HEAD OFFICE SEOUL）”，与本公司汇票上的汇款行名称一致，只有1处使用“INDUSTRIAL BANK OF KOREA（HEAD OFFICE SEOUL）SEOUL”；另外，韩国企业银行在自己的答辩状中，也使用了与本公司开具汇票上一致的汇款行名称。因此，汇款行名称即使有误，也是由韩国企业银行造成的。2.按中国法律规定，中国企业名称以工商登记中的中文名称为准，外文名称不是法定名称，故本公司将自己企业外文名称中的“G”误写为“D”，并不违法。3.韩国企业银行企图以庭后提交的提单副本复印件来证明本公司倒签提单，但这个复印件与双方都向法庭提交过的正本提单内容不一致，且复印件来源不明，作为证据存在着形式上的缺陷，不能证明倒签问题。 |
Upon trial, the Intermediate People's Court of Nanjing City verified the following facts that: | |
南京市中级人民法院经审理查明： |
On April 24th, 2002, in response to the request of Changji Business Corporation, Seoul, Korea (hereinafter referred to as Changji Company), Industrial Bank of Korea issued an irrevocable documentary letter of credit No. M04E5204NS00484 for USD110,500, the date of expiration of which was June 30th, 2002. The English name of the beneficiary appearing on the letter of credit was LIANYUNGAND KUCHIFUKU FOODS CO.LTD, the negotiating bank was any bank, the terms of payment was payment at sight, and the payer was Industrial Bank of Korea. The latest date of shipment was May 31st, 2002, the documents required were signed commercial invoices in triplicate, a full set of clean bills of lading in original and a packing list in triplicate. The present letter of credit also stipulated such issues as the presentation of documents and the negotiating period, etc. After receiving the present letter of credit, Kuchifuku Foods Company submitted to Nuclear Power Plant Sub-branch of BOC the full set of documents under the letter of credit, among which, the date of shipment on the original bill of lading was May 31st, 2002. The Nuclear Power Plant Sub-branch of BOC checked the documents it received in a strict manner and sent them to the issuing bank through EMS on 7th of the same month. On June 19th, the same year, Nuclear Power Plant Sub-branch of BOC received two notices of dishonor from Industrial Bank of Korea with such dishonor grounds as follows: 1. The name of goods on the invoice, packing list and bill of lading was inconsistent with each other; 2. The date of shipment on the bill of lading was forged; 3. The name of the remitting bank on the bill of exchange was inconsistent with that on the letter of credit; 4. The consignee's address was not given. After receiving the notices of dishonor, Nuclear Power Plant Sub-branch of BOC sent a letter of reply to Industrial Bank of Korea on June 20th, which pointed out the nonexistence of the discrepancies the Bank mentioned and asked it to accept the full set of documents and make payment immediately. On June 26th, Industrial Bank of Korea send a letter to Nuclear Power Plant Sub-branch of BOC for a second time, it did not mention the discrepancies any more but claimed that: “The applicants told our bank that they have informed your bank about the fraud and admonished your bank not to accept the documents of the beneficiary. The applicants are bringing a suit against the beneficiary for fraud. hawse have evidences to prove that the documents are forged and the fraud is going on.” Hereafter, Nuclear Power Plant Sub-branch of BOC tried to negotiate with Industrial Bank of Korea on many occasions and asked it to perform its payment duty as an issuing bank, but got no reply from Industrial Bank of Korea. On September 3rd, Nuclear Power Plant Sub-branch of BOC received the returned documents and the duplicated documentation of the photocopy of the stop-payment order issued by Seoul Court, Korea from Industrial Bank of Korea. On September 9th, Nuclear Power Plant Sub-branch of BOC handed the returned documents to Kuchifuku Foods Company, who brought this lawsuit to this end. | |
2002年4月24日，应韩国汉城昌技企业有限公司（以下简称昌技公司）的申请，被告韩国企业银行开出一份号码为M04E5204NS00484的不可撤销跟单信用证，金额110500美元，有效日期至同年6月30日，信用证上注明的受益人英文名称为LIANYUNGAND KUCHIFUKU FOODS CO.LTD，议付行为任何银行，付款方式为见票即付，付款人韩国企业银行；最迟装船日期为2002年5月31日，所需单据为已签署的商业发票一式三份、全套正本清洁提单、装箱单一式三份。该信用证还约定了交单、议付单据期间等。原告口福食品公司收到该信用证后，于2002年6月6日向被告中行核电站支行提交了信用证项下的全套单据，其中正本提单载明的装船日期为2002年5月31日。中行核电站支行收到单据后进行了严格核对，并于当月7日通过快邮寄给开证行。同年6月19日，中行核电站支行收到韩国企业银行的两份拒付通知书，拒付理由为：1.发票、装箱单、提单上的商品品名不一致；2.提单上的装船日期是伪造的；3.汇票上注明的汇款行名称与信用证上的汇款行名称不一致；4.没有注明收货人地址。收到拒付通知后，中行核电站支行于6月20日给韩国企业银行回函，指出其提出的不符点不存在，并要求其接受全套单据并立即付款。6月26日，韩国企业银行第二次致函中行核电站支行，未再提出不符点问题，而是称：“申请人告知我行，他们曾通知贵行有关欺诈事宜，并警告贵行不要接受受益人的单据，目前申请人正就欺诈一事起诉受益人。我行有证据证明单据系伪造，而且欺诈正在进行。”此后，中行核电站支行虽多次与韩国企业银行交涉，要求其履行开证行的付款责任，但均未收到韩国企业银行的回复。9月3日，中行核电站支行收到韩国企业银行的退单及所附韩国汉城法院的止付令副本复印件。9月9日，中行核电站支行将退单交给口福食品公司，口福食品公司为此提起本案诉讼。 |
PROCEDURAL POSTURE | |
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The Intermediate People's Court of Nanjing City held that: | |
南京市中级人民法院认为： |
Paragraph 1 of Article 34 of the Some Provisions of the Supreme People's Court on Evidence in Civil Procedures stipulates that “The parties concerned shall submit evidential materials to the people's court within the time period for producing evidences; in case any party fails to submit evidences during this time period shall be deemed as waiving the right to produce evidences.” Paragraph 2 stipulates that “The evidence materials submitted by the parties concerned beyond the time period shall not be cross-examined during the court hearing of the people's court, unless both parties agree to cross-examine them.” Article 43 stipulates that “Where the evidences submitted by the parties concerned after the period for producing evidences expires are not new evidences, they shall not be accepted by the people's court.” “Where any evidence fails to be provided by the parties concerned during the extended period upon the approval of the people's court due to objective reasons and the failure to hear such evidence may result in injustice, such evidence may be deemed as new evidence.” Within the stipulated proof period, Industrial Bank of Korea did not submit any evidence or apply for extending the period for presenting evidences, and the evidences it submitted after the court hearing were not newly discovered evidences submitted after the expiration of the proof period or the evidences which were unable to be provided during the proof period. As the other parties concerned in the case refused to cross-examine them, the evidences submitted by Industrial Bank of Korea shall not be cross-examined.
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最高人民法院《关于民事诉讼证据的若干规定》第三十四条第一款规定：“当事人应当在举证期限内向人民法院提交证据材料，当事人在举证期限内不提交的，视为放弃举证权利。”第二款规定：“对于当事人逾期提交的证据材料，人民法院审理时不组织质证。但对方当事人同意质证的除外。”第四十三条规定：“当事人举证期限届满后提供的证据不是新的证据的，人民法院不予采纳。”“当事人经人民法院准许延期举证，但因客观原因未能在准许的期限内提供，且不审理该证据可能导致裁判明显不公的，其提供的证据可视为新的证据。”在规定举证期限内，被告韩国企业银行未提交证据，也未提出延期举证的申请；其在庭后提交的证据，不属于举证期限届满后新发现的证据，或者在举证期限内无法提供的证据；在本案其他当事人拒绝质证的情况下，对韩国企业银行提交的这些证据不组织质证。
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