海林公司诉晓星公司购销合同纠纷案
Hailin Company v. Hyosung Company
(Case of Dispute over the Purchase and Sale Contract) |
原告（反诉被告）：海林国际有限公司。住所地：香港特别行政区湾仔港湾道２５号海港中心１８０５室。
法定代表人：浦维明，该公司董事长。
诉讼代理人：曹欣光，北京市海问律师事务所律师。
被告（反诉原告）：晓星物产香港有限公司。住所地：香港特别行政区金钟道８６号太古广场一座３７号３７１０室。
法定代表人：朴教雨，该公司董事长。
诉讼代理人：朴雨远，晓星物产香港有限公司职员。
诉讼代理人：萧志坚，广州国际商务律师事务所律师。
原告海林国际有限公司（以下简称海林公司）因与被告晓星物产香港有限公司（以下简称香港晓星公司）发生购销合同纠纷，向广东省广州市中级人民法院提起诉讼。
原告诉称：我公司按照与被告香港晓星公司签订的购销合同中的约定开出信用证，香港晓星公司拒收并单方面宣布解除合同，以致我公司对下家买方厦门华榕进出口公司（以下简称华榕公司）的购销合同无法履行，向华榕公司支付了违约金人民币６７．５万元。请求判令香港晓星公司按照合同的约定，向我公司支付违约金７２７５０美元，赔偿我公司付给华榕公司的损失人民币６７．５万元，支付的开证费２５００美元和律师费人民币１５万元，以及上述款项的利息。
被告答辩并反诉称：我公司与原告海林公司签订合同时，不知道该合同还与华榕公司有关，也不可能意识到海林公司会采用转让信用证的方式来履行开证义务。双方签订购销合同，在双方没有明确约定的情况下，合同义务只能由买卖双方亲自履行。海林公司没有按照合同的约定，在１９９５年７月３０日前亲自开立以自己为开证人、以我公司为受益人的不可撤销远期信用证，而是向我公司转来华榕公司开立的可转让信用证，这种作法违背国际贸易惯例和一般的买卖习惯，已经构成违约，故应当驳回海林公司的诉讼请求。反诉请求判令海林公司给我公司支付违约金７２７５０美元，赔偿律师费人民币８万元，同时承担本案的全部诉讼费用。
广州市中级人民法院经审理查明：
１９９５年７月，原告海林公司与被告晓星公司协商买卖聚酯切片期间，收到晓星公司传真来的购销格式合同要约文本正背两面。７月２２日，双方经协商一致后在格式合同的正面签字。合同约定：买方海林公司、卖方晓星公司；买卖货物聚酯切片１０００吨；单价每吨１４６０美元；装运期１９９５年８月２０日前；付款方式是通过开立以韩国晓星公司为受益人、按提单日期第６０天付款的不可撤销远期信用证支付；该信用证不迟于７月３１日开出；如买方迟至８月１日未能将信用证电报影印件传给卖方，卖方有权不经通知取消交易并保留向买方索赔合同金额５％的权利；卖方迟至８月２０日仍未发货，则买方保留向卖方索赔合同金额５％的权利。该格式合同的正面内容中未表明背面条款是否作为合同不可分割的一部分，双方当事人也未能就背面条款达成一致意见，故背面的仲裁条款不包括在合同中。７月２６日，双方又达成修改协议，将货物价格由每吨１４６０美元修改为ＣＮＦ厦门１４５５美元，付款日期由按提单日起第６０天付款改为第４５天付款。
１９９５年７月２７日，原告海林公司向香港新华银行提出信用证转让申请，申请将其下家买方华榕公司根据与海林公司的合同约定，由中国工商银行厦门分行开出、以海林公司为第一受益人、自提单日起第４５天付款的不可撤销远期信用证，转让给南韩晓星公司。海林公司将这一转让用传真通知了晓星公司驻广州办事处。同日，该办事处表示拒绝接受转让的不可撤销信用证，要求海林公司亲自独立开证。７月２８日后，双方多次传真往来，晓星公司坚持不接受转让的信用证；而海林公司则认为转让信用证没有违反合同约定和国际贸易惯例，并于７月３１日通过香港新华银行和汉城ＮＯＶＡＳＣＯＴＩＡ银行办理了向韩国晓星公司的信用证转让手续。８月１日，晓星公司驻广州办事处又发来传真，仍表示拒绝接受海林公司转让的信用证，并单方面宣布解除合同。８月２０日，晓星公司未按合同约定履行交货义务，并于８月２２日告知海林公司，其已于８月２１日通知汉城ＮＯＶＡＳ－
ＣＯＴＩＡ银行拒绝了香港新华银行的转证，信用证已经退回。８月２５日，因海林公司没有向华榕公司履行交货义务，华榕公司向海林公司提出索赔要求。９月１８日，海林公司与华榕公司签订了赔偿协议，海林公司按照约定于１０月１７日向华榕公司支付了违约赔偿人民币６７．５万元。
另查明：原告海林公司用于支付信用证转让手续费、邮政电报费等合计１３０４３．０４港元，支付律师代理费人民币１５万元。
广州市中级人民法院认为：《中华人民共和国涉外经济合同法》第五条第三款规定：“中华人民共和国法律未作规定的，可以适用国际惯例”。原告海林公司与被告晓星公司签订的买卖合同是符合国际贸易惯例和一般买卖习惯的，应为有效合同。海林公司履行了开证义务，其开证行为并不违反合同的约定和国际贸易惯例，晓星公司拒绝接受该信用证并宣布解除合同，拒绝发货，其行为违反了涉外合同法第十六条关于“合同依法成立即具有法律约束力。当事人应当履行合同约定的义务，任何一方不应擅自变更或者解除合同”的规定，实属违约。涉外经济合同法第十九条规定：“当事人一方违反合同的赔偿责任，应当相当于另一方因此所受到的损失，但不得超过违反合同一方订立合同时应当预见到的因违反合同可能造成的损失”。晓星公司对因其过错导致海林公司遭受的支付违约赔偿金、转让手续费、律师费等损失应负赔偿责任。海林公司在要求晓星公司承担赔偿责任后，还要求晓星公司按照合同约定承担违约责任，给其支付违约金７２７５０美元。因晓星公司承担的赔偿责任已大于双方约定的违约金，故海林公司的这一主张违反涉外合同法第二十条第二款的规定，不予支持。由于晓星公司已单方宣布解除合同，且海林公司也不请求继续履行合同，故双方签订的合同应当终止。晓星公司提出的反诉于法无据，应予驳回。据此，广州市中级人民法院判决：
一、被告晓星公司于判决生效之日起１０日内，向原告海林公司赔偿人民币８２．５万元、港币１３０４３．０４元。
二、驳回原告海林公司的其他诉讼请求。
三、驳回被告晓星公司的反诉请求。
案件受理费１６５４５元，由被告晓星公司负担１１０３０元，原告海林公司负担５５１５元。反诉受理费１３４６５元由晓星公司负担。
被告晓星公司不服上述一审判决，向广东省高级人民法院提起上诉。理由是：１、被上诉人海林公司在本案中实施了两个行为，即安排华榕公司申请开立信用证和向新华银行香港分行申请将华榕公司开立的信用证转让给上诉人。安排华榕公司申请开立信用证与自己申请开立信用证是有区别的，因此这个行为不是海林公司履行开立信用证的义务。转让信用证，也不等同于自己申请开立信用证。况且转让是另一个民事行为，其前提必须是转让方与受让方达成一致意见，转让行为才有效，否则无效。合同约定的付款方式是，海林公司不得迟于１９９５年７月３１日开立以晓星公司为第一受益人、按提单日期第６０天付款的（不可转让）不可撤销的信用证。虽然在合同中没有明确由谁申请开立信用证，但在没有约定的情况下，应该认定为由合同的买方海林公司承担申请开立信用证的义务。海林公司没有履行开立信用证的义务，显属违约。２、海林公司转让信用证，第一只给上诉人传真来新华银行香港分行的发电稿，不是信用证电报影印件；第二该发电稿只记载了开证行，没有记载咨询处，并且言明新华银行香港分行对该信用证不负任何责任；第三该发电稿明确了转让行为的手续费由受让方负责，增加了上诉人的费用；第四该发电稿给议付／押汇行的特别指示，不能保证上诉人按时收取货款；第五是由于新华银行香港分行作为中介银行的介入，使上诉人收取货款的途径复杂化，增加了上诉人收款的风险。这些都将导致损害上诉人的利益。３、《跟单信用证统一惯例》（以下简称ＵＣＰ５００）第四十八条规定，转让信用证的行为是一种特别行为，必须经转让方、受让方和转让银行的同意才能实施。海林公司未征得上诉人的同意就擅自转让信用证，这一行为不符合国际惯例。原审判决既不符合事实，也无法律依据，应当撤销。
被上诉人海林公司辩称：一、根据合同的约定，海林公司只要提供了以上诉人晓星公司为受益人、按提单日期第６０天付款、不迟于１９９５年７月３１日开立的不可撤销信用证，就履行了同晓星公司开证的义务。海林公司的开证行为完全符合合同约定。二、信用证的作用是以银行信用取代商业信用。信用证一旦开出，开证银行便以自己的信用向卖方作出付款保证，而开证银行作出的这种付款保证和承担的付款义务与谁是合同的买方无关。因此在国际贸易实践中，除非合同明确约定必须由合同买方直接申请开证，否则由谁申请开证完全是买方权限范围内的安排，与卖方无关。只要买方安排开出的信用证符合合同要求，卖方不得拒绝。本案合同并未规定必须由海林公司作为开证申请人直接向银行申请开证，故晓星公司拒绝接受合同项下信用证的理由不能成立。三、本案合同仅约定海林公司向晓星公司提供不可撤销远期信用证，而没有约定该信用证是不可转让的。晓星公司以与海林公司没有就转让信用证达成过合意为由拒收该信用证，是违约行为。四、ＵＣＰ５００中没有也不可能有可转让信用证必须经合同双方达成合意才能使用的规定，没有也不可能有可转让信用证必须经第二受益人同意才能使用的规定。在双方的合同中，也没有限制海林公司在另一独立合同关系中采用何种支付方式。晓星公司称转让信用证行为不符合国际贸易惯例，只能说明晓星公司对信用证的作用和国际贸易惯例缺乏基本的了解。本案事实清楚、法律关系明确，一审判决适用法律正确，上诉人的上诉请求应当驳回。
广东省高级人民法院经审理认为：
本案双方当事人在签订和履行合同时，应当依照《中华人民共和国民法通则》第四条和涉外经济合同法第三条的规定，遵循“自愿、公平、等价有偿、诚实信用”和“平等互利、协商一致”的原则，根据合同的性质、目的和交易习惯，履行相互通知和相互协助等义务。在采取信用证付款的购销合同中，履行付款义务的一方是转让信用证还是直接申请开立信用证，由于两种方式造成收款的时间和环节不同，前者给收取货款一方带来的商业风险，肯定大于后者。上诉人晓星公司和被上诉人海林公司签订的购销合同中，没有约定是否可以通过转让信用证的方式付款，ＵＣＰ５００对此问题也无明文规定。在此情况下，晓星公司是与海林公司签订购销合同，不可能询问海林公司有无下家，是否准备用转让下家信用证的方式付款；海林公司既准备将下家交来的信用证转让给晓星公司，有义务将这种增加对方风险的付款方式事先通知对方，以征得对方的同意。海林公司事先没有通知，在得知晓星公司反对采取这种付款方式后仍一意孤行，对纠纷的发生负有责任。
双方当事人是在上诉人晓星公司制定的格式合同上达成购销合同的。该格式合同条款中，就是否允许以转让的信用证付款的问题，约定是不明确的。对此，格式合同的制作者晓星公司也应当承担责任。
由于合同约定不明确，导致发生纠纷。纠纷发生后，双方当事人不能互相谅解并达成一致意见，最终使合同无法履行。对此，对方当事人均有过错。本案的购销合同应当终止履行，由此给双方造成的损失，双方各自承担。双方当事人请求对方当事人承担违约责任的主张，均不支持。一审认定的事实清楚，但适用法律有误，判决结果有失公正，应当改判。据此，广东省高级人民法院依照《中华人民共和国民事诉讼法》第一百五十三条第一款第二项的规定判决：
一、维持原审判决第三项。
二、撤销原审判决第一、二项。
三、驳回海林公司的诉讼请求。
一审案件本诉受理费人民币１６５４５元，由海林公司负担，反诉受理费１３４６５元，由晓星公司负担。二审受理费人民币３００１０元，由海林公司负担１６５４５元，晓星公司负担１３４６５元。
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Hailin Company v. Hyosung Company
(Case of Dispute over the Purchase and Sale Contract)
Plaintiff (Defendant in the Counterclaim): Hailin
International Co., Ltd., situated at Room 1805, Harbor
Center, No. 25 Harbor Road, Wanchai, Hong Kong.
Legal Representative: Pu Weiming, chairman of the board of
directors of this company.
Authorized Agent: Cao Xinguang, attorney-at-law of Beijing
Haiwen & Partners.
Defendant (Plaintiff in the Counterclaim): Hyosdog (HK) Co.,
Ltd., situated at Room 3710, No. 37, Tower A, Pacific Place,
No. 86, Queensway, Hong Kong.
Legal Representative: Park Kyo-woo, chairman of the board of
directors of this company.
Authorized Agent: Park Woo-won, employee of this company.
Authorized Agent: Xiao Zhijian, attorney-at-law of Guangzhou
International Business Law Firm.
Hailin International Co., Ltd. (hereinafter referred to as
Hailin Company) filed a lawsuit with the Intermediate
People’s Court of Guangzhou Municipality, Guangdong Province
against Hyosdog (HK) Co., Ltd. (hereinafter referred to as
Hyosung Company) for the dispute over the purchase and sale
contract.
Hailin Company complained that: It had opened a letter of
credit (L/C) under the purchase and sale contract concluded
with Hyosung Company, but Hyosung Company refused to accept
it and unilaterally rescinded the contract, which made it
unable to perform the purchase and sale contract concluded
with Xiamen Huarong Import & Export Company (hereinafter
referred to as Huarong Company), his next contractor to
which goods were sold, and thus it paid 675,000 yuan of
fines for breach of contract to Huarong Company. Hailin
Company pleaded with the court to order Hyosung Company to
pay USD 72,750 of fines for breach of contract as stipulated
in the contract, and to compensate 675,000 yuan of losses
Hailin Company had paid to Huarong Company, USD 2,500 of the
expenses for applying for the L/C, 150,000 yuan of
attorney’s fees as well as the interests of the said fees.
Hyosung Company defended and counterclaimed that: When it
concluded the contract with Hailin Company, it did not know
that the contract was also related to Huarong Company, nor
could it be aware that Hailin Company would perform the
obligation of applying for the L/C by the transfer of L/C.
Under the circumstance that both parties had concluded the
purchase and sale contract but failed to make clear
stipulations, the contractual obligation should be fulfilled
only by both parties themselves. However, Hailin Company
failed to apply for an irrevocable usance L/C by taking
itself as the issuer and Hyosung Company as the beneficiary
before July 30, 1995 according to the contract, but
transferred the transferable L/C issued upon application of
Huarong Company to Hyosung Company, which was not in
conformity with international trade practice and general
trading habits and constituted the breach of contract, so
the claims of Hailin Company should be rejected. Hyosung
Company pleaded with the court in its counterclaim to order
Hailin Company to pay USD 72,750 of fines for breach of
contract and compensate 80,000 yuan of attorney’s fees, and
to assume all the litigation costs for this case.
Upon trial, the Intermediate People’s Court of Guangzhou
Municipality found that:
In July 1995, when Hailin Company consulted with Hyosung
Company for the sale of polyester chips, it received both
the converse and obverse sides of the offer for the format
purchase and sale contract sent by Hyosung Company by fax.
On July 22, both parties affixed their names on the obverse
side of the format contract upon negotiations. The contract
stipulated that: Hailin Company should buy 1,000 tons of
polyester chips from Hyosung Company at the unit price of
USD 1,460 per ton; the goods should be shipped before August
20, 1995; the money should be paid through the irrevocable
usance L/C, which should be issued by taking Korea Hyosung
Company as the beneficiary and making payments within 60
days after the date of the bill of lading; the said L/C
should be issued before July 31; if Hailin Company failed to
transfer the telex photocopy of the L/C before August 1,
Hyosung Company had the right to cancel the transaction
without notification to Hailin Company and preserve the
right to claim the compensation of 5% of the total
contractual amount; if Hyosung Company failed to deliver
goods before August 20, Hailin Company could preserve the
right to claim the compensation of 5% of the total
contractual amount. The contents on the obverse side of the
said format contract did not state whether the clauses on
the converse side were an inseparable part of the said
contract, and both parties also did not reach the unanimity
with the clauses on the converse side, so the arbitration
clause on the converse side could not be regarded as being
included in the said format contract. On July 26, both
parties reached a revised agreement and changed the price of
goods from USD 1,640 per ton into USD 1,455 per ton under
the Xiamen CNF, and changed the date of payment from within
60 days after the date of the bill of lading into the
payment within 45 days.
On July 27, 1995, Hailin Company applied to Hong Kong Branch
of Sin Hua Bank (hereinafter referred to as Sin Hua Bank)
for transferring the irrevocable usance L/C, which was
opened by Huarong Company under the contract concluded with
Hailin Company at Xiamen Branch of China Industrial and
Commercial Bank by taking Hailin Company as the first
beneficiary and with the payment within 45 days after the
date of the bill of lading, to Korea Hyosung Company. Hailin
Company notified the said transfer by fax to the Guangzhou
Office of Hyosung Company, which refused to accept the
irrevocable L/C as transferred on the same day, and required
Hailin Company to apply for a separate L/C by itself. After
July 28, both parties contacted for several times by fax,
and Hyosung Company insisted on rejecting the L/C as
transferred; but Hailin Company maintained that the transfer
of L/C did not violate the contract and international trade
practice, and further went through the formalities for
transferring the L/C to Korea Hyosung Company through Sin
Hua Bank and Seoul Novascotia Bank. On August 1, Guangzhou
Office of Hyosung Company delivered a fax and still declared
to reject the L/C as transferred by Hailin Company, and
unilaterally announced to rescind the contract. On August
20, Hyosung Company failed to perform the obligation of
delivering goods as stipulated in the contract, and notified
Hailin Company on August 22 that it had notified Seoul
Novascotia Bank to refuse to accept the L/C transferred
through Sin Hua Bank on August 21 and the L/C was returned.
On August 25, Huarong Company claimed to Hailin Company for
compensation because Hailin Company failed to perform the
obligation of delivering goods. On September 18, Hailin
Company and Huarong Company concluded an agreement of
compensation, which stipulated that Hailin Company should
pay 675,000 yuan of fines for breach of contract to Huarong
Company on October 17.
It was also found that: Hailin Company had paid HKD
13,043.04 of commissions for the transfer of L/C and postal
cable charges, etc. as well as 150,000 yuan of attorney’s
fees.
The Intermediate People’s Court of Guangzhou Municipality
held that: Paragraph 3 of Article 5 of the Law of the
People’s Republic of China on the Foreign-Related Economic
Contracts prescribes that: “For matters that are not covered
in the laws of the People's Republic of China, international
practice shall be followed.” Since the purchase and sale
contract concluded between Hailin Company and Hyosung
Company conformed to international trade practice and
general trading habits, it should be valid. Hailin Company
had performed the obligation of applying for the L/C in line
with the contract and international trade practice, however,
Hyosung Company refused to accept the L/C and announced to
rescind the contract, and rejected the deliverance of the
goods, so it had violated the provisions that “a contract
shall be legally binding once it is legally established. The
parties shall perform their obligations stipulated in the
contract. No party shall unilaterally modify or rescind the
contract” as prescribed in Article 16 of the Law on
Foreign-Related Economic Contracts, and therefore
constituted the breach of contract. Article 19 of the Law on
Foreign-Related Economic Contracts prescribes that: “The
liability of a party to pay compensation for the breach of a
contract shall be equal to the loss suffered by the other
party as a consequence of the breach. However, such
compensation may not exceed the loss which the party
responsible for the breach ought to have foreseen at the
time of the conclusion of the contract as a possible
consequence of a breach of contract.” So Hyosung Company
should compensate for the fines for breach of contract, the
commissions for transferring the L/C as well as the
attorney’s fees suffered by Hailin Company due to the fault
of Hyosung Company. After Hailin Company required Hyosung
Company to assume the liability of compensation, it still
required Hyosung Company to assume the liability for breach
of contract according to the contract and pay USD 72,750 of
fines for breach of contract. Since the liability of
compensation assumed by Hyosung Company was more than the
fines for breach of contract as stipulated by both parties,
the said claim of Hailin Company could not be supported
since it violated Paragraph 2 of Article 20 of the Law on
Foreign-Related Economic Contracts. Because Hyosung Company
had unilaterally announced to rescind the contract, and
Hailin Company also did not require to continue the
performance of the contract, the contract concluded between
both parties should be terminated. The counterclaim filed by
Hyosung Company was groundless and should be rejected. Based
thereon, the Intermediate People’s Court of Guangzhou
Municipality adjudicated that:
1. Hyosung Company should, within 10 days upon effectiveness
of this judgment, compensate 825,000 yuan as well as 13,
043.04 HK Dollars to Hailin Company.
2. Other claims of Hailin Company should be rejected.
3. The counterclaim of Hyosung Company should be rejected.
As to the 16, 545 yuan of case acceptance fees, Hyosung
Company should assume 11,030 yuan, and Hailin Company should
assume 5, 515 yuan. The 13,465 yuan of counterclaim
acceptance fees should be borne by Hyosung Company.
Hyosung Company was not satisfied with the judgment of the
first instance and appealed to the Higher People’s Court of
Guangdong Province for the reasons that: 1. In this case,
Hailin Company had conducted two acts, namely, arranging
Huarong Company to apply for issuing a L/C and applying to
Sin Hua Bank for transferring the L/C issued by Huarong
Company to Hyosung Company. The first act was different from
the application for issuing a L/C by Hualin Company itself,
so it did not show that Hailin Company had fulfilled the
obligation of applying for issuing a L/C. The transfer of
L/C was not equal to an application for issuing a L/C by
Hualin Company itself. Furthermore, the said transfer was
another civil act, and was valid only when the transferor
and the transferee reached the unanimity, otherwise, the
transfer would be invalid. The payment method stipulated in
the contract was: Hailin Company should issue an irrevocable
usance L/C with Hyosung Company as the first beneficiary and
the payment within 60 days after the date of the bill of
lading. Although which party should issue the L/C was not
specified in the contract, under such a circumstance, Hailin
Company should assume such obligation since it was the buyer
of goods. In fact, Hailin Company failed to perform such
obligation, and thus violated the contract. 2. When Hailin
Company transferred the L/C, firstly, it only faxed a telex
draft of Sin Hua Bank but not the telex photocopy of the
L/C; secondly, the telex draft only indicated the issuing
bank, did not refer the consultancy office, and declared
that Sin Hua Bank should not assume any liability for the
L/C; thirdly, the telex draft indicated that the commissions
for transfer should be borne by Hyosung Company, which added
the expenses of Hyosung Company; fourthly, the telex draft
gave a special indication to the negotiating bank, so
whether Hyosung Company could receive the payments of goods
on time could not be guaranteed; and fifthly, the
intervention of Sin Hua Bank as an intermediary bank would
make the receipt of payments more complex and add the risks
to the receipt of payments by Hyosung Company. All these
would damage the interests of Hyosung Company. 3. Article 48
of the Uniform Customs and Practice for Documentary Credits
(hereinafter referred to as UCP 500) prescribes that: the
transfer of L/C is a special act, and can not be implemented
unless all three of the transferor, the transferee, and the
transferring bank consent to do so. In this case, Hailin
Company failed to solicit the consent of Hyosung Company but
directly transferred the L/C, so its act was not in
conformity with international practice. The judgment of
original trial not only lacked facts but also was not based
on the law, and thus should be overruled.
Hailin Company defended that: 1. According to the contract,
it only needed to provide an irrevocable L/C applied for
before July 31, 1995 with Hyosung Company as the beneficiary
and the payment within 60 days after the date of the bill of
lading. The application of L/C by Hailin Company was
completely consistent with the contract. 2. By using the
L/C, the bank credit would substitute for commercial credit.
Once a L/C was issued, the issuing bank had guaranteed the
payment to the seller by its own credit, which, however, had
nothing to do with who was the contractual buyer. Thus, in
international trade practice, unless the contract specifies
that the contractual buyer should directly apply for a L/C,
who should apply for issuing a L/C was totally within the
discretion of the buyer, and had nothing to do with the
seller. If the L/C applied under the arrangement of the
buyer conforms to the contract, the seller should not refuse
it. In this case, the contract did not specify that Hailin
Company should directly apply to the bank for issuing a L/C
as the applicant for the L/C, so the reasons for Hyosung
Company’s refusal to accept the L/C under the contract could
not be established. 3. The contract involved in this case
only stipulated that Hailin Company should provide an
irrevocable usance L/C to Hyosung Company but did not
stipulate that the L/C could not be transferred. Hyosung
Company refused to accept the L/C for the reason that it did
not reach the consensus with Hailin Company for the transfer
of L/C, which constituted the breach of contract. 4. UCP 500
did not and would not prescribe that a transferable L/C
could not be used unless both parties to the contract
reached the consensus, and did not and would not prescribe
that a transferable L/C could not be used unless the second
beneficiary consented to it. The contract concluded between
Hailin Company and Hyosung Company also did not restrict
Hailin Company’s adoption of the kind of payment methods in
any other separate contractual relationship. The claim of
Hyosung Company that the transfer of L/C was not in
conformity with international trade practice only showed its
lack of basic understanding about the purposes of L/C and
the international trade practice. The facts were clear and
the legal relationship was straightforward in this case, and
the laws were correctly applied in the judgment of the first
instance, so the claims in the appeal of Hyosung Company
should be rejected.
Upon trial, the Higher People’s Court of Guangdong
Province held that:
Both parties involved in this case should, when concluding
and performing the contract, perform such obligations as
mutual notification and mutual assistance according to
Article 4 of the General Principles of the Civil Law of the
People’s Republic of China and Article 3 of the Law on
Foreign-related Economic Contracts, by following the
principles of “voluntariness, fairness, equivalent
compensation and good faith” and “equality, mutual benefit
and consensus”, and in light of the contractual nature and
purposes as well as trading habits. In a purchase and sale
contract in which the payment method by the L/C was adopted,
the party that should make payments could transfer a L/C or
directly apply for issuing a L/C, the former would bring
more commercial risks than the latter since the time and
procedures for receiving the payments would be different in
such two methods. The purchase and sale contract concluded
between Hailin Company and Hyosung Company did not stipulate
whether the payment could be made by way of the transfer of
L/C, and UCP 500 also did not specify such issue. Under such
a circumstance, when Hyosung Company was concluding the
purchase and sale contract with Hailin Company, it could not
inquire of Hailin Company about whether Hailin Company has a
next contractor or whether the payment would be made by
transferring the L/C issued upon application of the next
contractor; since Hailin Company arranged to transfer the
L/C issued upon application of Huarong Company to Hyosung
Company, it should notify such payment method to Hyosung
Company in advance so as to solicit the consent from it.
However, Hailin Company failed to do so, and still took its
own way after knowing that Hyosung Company objected such
payment method, so Hailin Company should be liable for the
occurrence of the dispute.
Both parties concluded the purchase and sale contract on the
basis of the format contract formulated by Hyosung Company.
The said format contract did not specify whether the payment
could be made by way of the transfer of L/C. So, Hyosung
Company also should assume the liability.
The dispute involved in this case was resulted from the
unclear stipulations in the contract, and after the dispute
occurred, both parties could not mutually understand or
reach the unanimity, which made the contract impossible to
be performed finally. So both parties had faults for it. The
performance of the purchase and sale contract involved in
this case should be terminated, and both parties should
assume the losses resulted therefrom by themselves. The
claims of both parties for requiring the other party to
assume the liability for breach of contract could not be
supported. The findings of facts were clear, but the laws
were wrongly applied in the first instance, and the judgment
was unfair and thus should be overruled. Based thereon, the
Higher People’s Court of Guangdong Province rendered the
following judgment according to Item (2) of Paragraph 1 of
Article 153 of the Civil Procedure Law of the People’s
Republic of China:
1. Item 3 of the judgment of original trial should be
maintained.
2. Items 1 and 2 of the judgment of original trial should be
revoked.
3. The claims of Hailin Company should be rejected.
The 16, 545 yuan of case acceptance fees for the first
instance of this case should be borne by Hailin Company, and
the 13, 465 yuan of counterclaim acceptance fees should be
borne by Hyosung Company. As to the 30,010 yuan of case
acceptance fees for the second instance of this case, Hailin
Company should assume 16,545 yuan, and Hyosung Company
should assume 13, 465 yuan. |
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