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List two trade cases.
Plaintiff (Appellee): Liangxi Co., Ltd. Defendant (Appellant): China Foreign Trade and Transportation Corporation 1995 12.30, and the plaintiff Liangxi Co., Ltd. (hereinafter referred to as Liangxi Company) entrusted the defendant China Foreign Trade and Transportation Corporation (hereinafter referred to as Sinotrans Company) to transfer the total value of 418/kloc- 1996 65438+1October 6th, the agent of Sinotrans, Shanghai Shipping Agency Company, released the goods to Pacific Company according to the letter of guarantee issued by Shanghai Pacific Machinery Import and Export Company (hereinafter referred to as Pacific Company), such as "Please release the goods because of the urgent need of production and be willing to bear the responsibilities arising therefrom", without the original bill of lading. On June 4th, 65438+1October, 65438, Liangxi Company, Pacific Company and Changshu No.10 Clothing Factory signed a supplementary agreement on this batch of goods, but they did not pay. Since then, there has been a trade dispute between Liangxi Company and Pacific Company, and Pacific Company failed to honor the bill of lading and revoked the letter of guarantee issued by Sinotrans Company, resulting in a loss of 465,438 US dollars+0,8/kloc-0,000 yuan for Liangxi Company.
The original report said: 1995 12.30 entrusted the defendant to transport 739 rolls of wool nitrile fabric with a value of 4 18 100 USD. The defendant issued a bill of lading. After the goods arrived in Shanghai, the defendant placed the goods without the original bill of lading, so the plaintiff could not take delivery. It is requested that the defendant be ordered to compensate for the loss of goods of 465,438 yuan+0,865,438 yuan+0,000 yuan and bear the legal costs of this case.
The defendant argued that after the goods involved in this case arrived in Hong Kong, they were released by themselves with the copy of the bill of lading and the letter of guarantee, and the plaintiff received the goods together with the outsider Pacific Company and Changshu No.10 Garment Factory and signed a Supplementary Agreement to confirm the delivery, so the plaintiff had no right to take delivery and claim compensation.
"trial"
After trial, the court of first instance held that Sinotrans, the carrier, should bear the responsibility of compensating Liangxi Company for the payment, and ruled that Sinotrans Company should compensate Liangxi Company for the payment of 4 1 8 1 000 USD.
After the judgment of the first instance, the defendant refused to accept the appeal, saying that it was not improper for him to release the incoming materials to the processing unit Pacific Company with the letter of guarantee; Liangxi Company also participated in the acceptance of the arrival of the goods at the destination port, and has no right to ask Sinotrans Company to bear the liability for payment.
Liangxi Company argued that Sinotrans Company violated international practice and delivered goods improperly without bill of lading; Sinotrans has successfully sued Pacific Company for taking delivery without bill of lading, and Pacific Company should be liable for the loss of payment.
The court of second instance found through trial that on June 5438+0995 1 65438+1October1day, Liangxi Company also signed a contract with Pacific Company to supply the clothing with a value of 4 18 100, and purchased the clothing with a value of 657 after processing. 1996 65438+1On October 2nd, Liangxi Company entrusted Sinotrans Company to deliver the cloth to Shanghai. 6543816/0, Pacific Company took clothes from the agent of Sinotrans Company with the letter of guarantee. 65438 10/9, Pacific Company found that the bill of lading did not indicate the quantity, weight, packaging and shipping notice of a single piece of goods, which violated the provisions of the letter of credit and informed the bank to refuse to pay for the goods. On June 4th, 65438+1October, 65438, Liangxi Company, Pacific Company and Changshu No.10 Clothing Factory (manufacturer) accepted the materials extracted by Pacific Company. At the same time, the three parties signed a "supplementary agreement", stipulating that due to time constraints, all materials could not be put into production after acceptance, the quality of materials had nothing to do with manufacturers, materials were not used because of holes and mildew, attention should be paid to color difference when cutting, and Liangxi Company paid for clothing at the original contract price, and so on. 65438+1On October 22nd, Pacific Company signed a contract with Changshu No.10 Clothing Factory to process 10000 women's coats. On February 7th and 8th, Changshu No.10 Garment Factory and Pacific Company successively asked Liangxi Company to receive the coat, but Liangxi Company ignored it. On May 9, Liangxi Company promised Pacific Company to send someone to inspect the goods on May 15, and also reneged.
1996165438+1October 15. Liangxi Company sued Sinotrans for delivering the goods without bill of lading because it did not receive the payment. 1October 8th, 1997, Pacific Company applied to the court of first instance to participate in the litigation in this case. On October 8th, 65438+ 10/kloc-0, Sinotrans also applied to the court of first instance to add a third person to the Pacific Company case, but none of them were accepted.
1997 65438+1October 16. Sinotrans sued Pacific Company for not returning the original bill of lading after taking delivery without bill of lading, which led to its being sued by Liangxi Company, demanding that Pacific Company return the bill of lading or compensate for the loss of payment under the bill of lading. 1February 2, 1998, the court of first instance made a first-instance judgment on this case, and at the same time pronounced a first-instance judgment on another case: Pacific Company compensated the shipping company for 4 18 100 USD. After the judgment, Pacific Company did not appeal, and this case took legal effect before this case.
1997 65438+1October 3 1 Pacific Company failed to take the case to court with Liangxi Company, so it had no choice but to apply to China International Economic and Trade Arbitration Commission Shanghai Branch for arbitration, demanding that Liangxi Company pay the garment processing fee of 239,000 US dollars (that is, selling garments of 65,765,438 US dollars and importing garments of 4/kloc-).
/kloc-at the end of 0/996 and the beginning of 0997, Changshu No.10 Garment Factory sued Pacific Company in Changshu People's Court, Jiangsu Province, demanding that the company pay the garment processing fee, overdue penalty of RMB 654.38+RMB 4500 and interest loss. 199865438+1On October 22nd, Changshu People's Court ruled that Pacific Company paid Changshu No.10 Garment Factory RMB1720,000 (this sum has been enforced by Changshu People's Court).
After trial, the court of second instance held that Liang Xi's legal act of inspecting goods was an act of ratification of Sinotrans's delivery of goods without bill of lading, and its failure to receive payment for clothes and materials was a trade reason, which had no causal relationship with delivery of goods without bill of lading in the transportation contract, so the judgment did not support Liang Xi's claim.
"assessment and analysis"
The first instance ruled that Sinotrans Company compensated Liangxi Company for improper payment of USD 465,438+0,865,438+0,000.
1. The bill of lading held by Liangxi Company has lost its real right effect. Before claiming the real right of bill of lading in maritime contract, Liangxi Company has chosen to claim the right of payment in trade contract. After delivery without bill of lading, Liangxi Company not only did not object, but also received the goods together with Pacific Company and garment factory. In the tripartite agreement, Liangxi Company, as the owner, admitted the quality problem of the cloth and asked the factory to produce it as soon as possible. Liangxi Company's legal act of inspection, because the delivery of goods is the premise of inspection, and there is no delivery of goods by bill of lading, is a ratification of the foreign shipping company's delivery of goods without bill of lading, that is, it recognizes that the real right of bill of lading in the maritime contract is transformed into the creditor's right of payment in the trade contract, which is actually a punishment of its own rights. According to the principle of "one thing, one right", the bill of lading held by Liangxi Company no longer has the effect of real right. Liangxi Company did not receive the payment, which was caused by its trade contract and had no causal relationship with the delivery of goods without bill of lading in the transportation contract.
Second, the reason why Pacific Company refused to pay the clothing payment was that Liang Xi Company was the responsible party for the unpaid clothing payment of Pacific Company. According to the trade contract signed between Liangxi Company and Pacific Company, Pacific Company should pay for the clothing by letter of credit. Pacific Company found that there were discrepancies in the bill of lading, failing to indicate the quantity, weight, packaging and shipping notice of a single piece of goods, which violated the provisions of the letter of credit and informed the bank to refuse to pay for the cloth, and the bank failed to pay. Pacific Company's self-protection measures against Liangxi Company's breach of contract are reasonable and legal, which are in line with Document No.500 of the International Chamber of Commerce and international trade practices. If Liangxi Company supplies the goods according to the contract, and there is no discrepancy in the bill of lading, even if Pacific Company finds that the materials are fake and shoddy goods before payment, Liangxi Company will not perform the contract of purchasing clothes at all. At that time, Pacific companies and banks shall not refuse to pay for the goods for any reason, otherwise the reputation of the bank and the country where the bank is located will be affected.
Third, there is fraud in Liangxi Company. Liangxi Company and Pacific Company signed two contracts for clothing supply and clothing purchase at the same time, and used "clothing purchase" as bait to induce Pacific Company to sign a clothing purchase contract and sell fake and shoddy clothes at a high price, with the intention of making huge profits from clothing sales and then absconding. In fact, Liangxi Company signed an agreement with Pacific Company and garment factory to inspect the materials for mildew and color difference. Pacific Company entrusts Shanghai Textile Fiber Quality Supervision and Inspection Station to inspect the hairless content of some fabrics; As well as the statement of Wu Jianping, a Hong Kong businessman who is the entrusted agent of Liangxi Company in this case, if there is no quality problem, the price of the materials provided by him exceeds US$ 6,543,800+500,000. Wu Jianping, a Hong Kong businessman who can't understate the price of the goods, quoted a genuine price of only about US$ 6,543.8+RMB 5,000, and this quotation is also unfounded, and it is far lower than the loss of the goods he asked foreign transportation companies to compensate for about US$ 4,654.38+RMB 5,000 (the freight from Hong Kong to Shanghai is HK$ 8,300).
Pacific company can participate in this lawsuit. Pacific company's participation in this lawsuit is well founded in law. Based on the shipping contract, Liangxi Company sued Sinotrans for delivering goods without bill of lading. As Pacific Company is the beneficiary of the delivery of goods without bill of lading by Sinotrans and the consignee without bill of lading (also the consignee previously determined by Liangxi Company), it can be regarded as a party in the shipping relationship in this case and has the right to participate in the litigation in this case. It is not groundless for Sinotrans and Pacific Company to ask Pacific Company to participate in this lawsuit, which can be proved by the case of Sinotrans v. Pacific Company's "dispute over recovery of delivery without bill of lading" tried by the court of first instance respectively. Because the causes of the two cases are different, the goods delivered without bill of lading are the same as the goods taken away, but the parties overlap and change. Moreover, according to the trade contract relationship between Liangxi Company and Pacific Company, it is not unreasonable for Pacific Company to request to participate in the transportation disputes arising from the goods ordered in the trade contract.
Verb (abbreviation of verb) The social effect of depriving Pacific Company of the right of appeal in this case is not good. Depriving Pacific Company of the right of appeal in this case not only leads to litigation, but also is not conducive to the correct trial of the case. The deprivation of Pacific Company's right of appeal in this case, there are three other series and overlapping cases, such as Sinotrans Company v. Pacific Company, Pacific Company v. Liangxi Company and Garment Factory v. Pacific Company. In essence, it was artificially cut off the direct litigation relationship between the deceived Liang Xi Company and the deceived Pacific Company. Objectively, it also eliminates worries and adds confidence to the unreasonable litigation of Liangxi Company. Because Liangxi Company deceived Pacific Company and avoided the mysterious disappearance of Pacific Company. Later, it suddenly took risks to sue Sinotrans, in an attempt to seize the mistake of Sinotrans in delivering goods without bill of lading, change its direction through litigation, and continue to achieve its original purpose of deception. It can be seen that depriving Pacific Company of its litigation rights in this case has no positive significance for protecting the legitimate interests of the parties, maintaining social and economic order and preventing the loss of state-owned assets.
Six, before the case is changed, the misjudged case must be retried. Before the case is changed, Sinotrans will not bear the loss of Liangxi Company's payment. Because the court of first instance ruled that Pacific Company compensated Sinotrans Company for more than USD 465,438+00,000, it was based on the fact that the case of Liangxi Company v. Sinotrans Company did not take effect, and both procedures and entities had wrong first-instance judgments, so it was necessary to file a case for review, decide to suspend the execution of the original judgment, and instruct Shanghai Maritime Court to retry the case. Then, if the case is changed first, a very serious situation will occur. In this case, Liangxi Company v. Sinotrans Company, In another case, the two effective judgments of Sinotrans Company v. Pacific Company were contradictory, and Sinotrans Company inexplicably made a profit of more than $4 1 10,000 in the lawsuit.
As for the trade contract dispute that Pacific Company requires Liangxi Company to fulfill the purchase of clothing, we can only respect the choice of Pacific Company and continue to settle it through arbitration.
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