Differences between postal service contract disputes and express service contract disputes

Practical analysis of legal characteristics of express service contract disputes under the background of epidemic prevention and control and resumption of production, and normative suggestions on power and responsibility optimization measures

Zhang Guodong, President of Commercial Court of Minhang District People's Court.

Assistant Judge, Commercial Court, Minhang District People's Court, Qiu Yiying.

First, the courier service contract dispute cases and litigation rights jurisdiction tips

(A) the difference between express service contract disputes and similar contract disputes

Express service contract dispute is one of the new causes of action since 202 1. 20211the Supreme People's Court's decision to amend the provisions on the cause of action of civil cases was implemented, in which "service contract dispute" was changed to "postal service contract dispute" and "express service contract dispute" was added, making "express service contract dispute" the first. But what needs special attention is:

1. Difference between express service contract dispute and postal service contract dispute. Both express service contract dispute and postal service contract dispute are modifications and refinements of the original cause of action "postal service contract dispute", but there are obvious differences between them. "Express service contract dispute" refers to the dispute between the enterprise operating express service and the sender due to the agreement on rights and obligations; "Postal service contract dispute" is a dispute caused by the agreement of mutual rights and obligations between postal enterprises and users.

2. The difference between express service contract disputes and transportation contract disputes (especially road, waterway and air cargo transportation contract disputes, and joint transportation contract disputes). From the implementation process, whether it is a courier service contract or a cargo transportation contract, it will involve the process of transporting specific goods from the place of departure to the agreed place, delivering them to the consignee, and the shipper or consignee will pay the freight. However, on the whole, there are obvious differences between the two. Express service contract refers to the agreement on rights and obligations between the enterprise operating express service and the sender. The contract of carriage of goods is mainly an agreement on the rights and obligations between the shipper and the consignee, and there is no restriction on industry or subject type.

(two) the jurisdiction of the courier service contract dispute tips

During the performance of the contract, there is a dispute over the rights and obligations of the enterprise or the sender operating the express delivery business. How to judge and determine the jurisdiction in the process of safeguarding rights? As mentioned above, disputes over express service contracts, as an accessory cause of service contract disputes, are under the jurisdiction of the people's court of the defendant's domicile or the place where the contract is performed according to the Civil Procedure Law of People's Republic of China (PRC), unless otherwise agreed by the parties. Among them, we should pay special attention to the determination of the place of performance of the contract: for cases where the subject matter of the dispute is the payment currency, such as cases where the courier service enterprise claims the courier fee, the domicile of the courier service enterprise is the place of performance of the contract; If the subject matter of the dispute is other subject matter, such as enterprises or individuals claiming compensation for losses based on the deterioration of express delivery or being impersonated. The courier service enterprise, as the party performing its obligations, has its domicile at the place where the contract is performed; If the courier service contract is not actually performed, the place of performance agreed in the contract and the domicile of both parties is not at the agreed address, it shall be under the jurisdiction of the people's court of the defendant's domicile.

1. Identification of disputes over express service contracts and provisions on centralized jurisdiction. As a subordinate cause of service contract disputes, express service contract disputes are under the jurisdiction of ordinary courts; Involving railway transportation and waterway transportation, it is usually under the jurisdiction of the railway transportation court or the maritime court according to the relevant jurisdiction provisions. Among them, taking Minhang Court as an example, according to the relevant jurisdiction regulations of Shanghai Higher People's Court and Shanghai People's Procuratorate, disputes over contracts for the carriage of goods such as air, highway and waterway originally under the jurisdiction of Minhang District are under the jurisdiction of Shanghai Railway Court (except those that should be under the jurisdiction of Shanghai Maritime Court) according to law.

2. The difference between express service contract disputes and cargo transportation contract disputes. Unless otherwise agreed, disputes over express delivery service contracts shall be under the jurisdiction of the people's court of the defendant's domicile or the place where the contract is performed; According to the Civil Procedure Law of People's Republic of China (PRC), disputes over transport contracts shall be under the jurisdiction of the people's court of the place of origin, destination or the defendant's domicile. Compared with the place where the contract is performed, the origin and destination of transportation are more certain, directional and unique.

Second, the data collation and contractual rights and obligations of express service contract disputes under the background of this epidemic.

After the outbreak, the number, types and demands of "express service contract disputes" cases have changed to some extent, which has certain statistical and research value for the prediction of the next stage of returning to work. Taking the relevant cases accepted by Minhang Court as an example, as of May 2022 (since the case was filed 17 months), Minhang Court accepted 45 cases of express service contract disputes:

(1) In terms of quantity, the number of cases accepted has gradually increased, and the increase rate has accelerated during this round of epidemic. 202 1 in the first half of the year, the court only accepted 2 cases; 27 cases were received in the second half of 20021,of which 7 cases were received in 2002 121,which was close to 60% of the cases received in the whole year of 20021,and it was more concentrated with the shopping festival in cycle, and the express delivery business was obvious at the end of the year. In 202210-May, a total of 6 cases were admitted10, of which10/case was admitted since the epidemic in March, accounting for nearly 70%. Without the influence of the above objective factors at the end of the year, it did not fall but rose, and the rising speed intensified, which was directly related to the prevention and control of the epidemic.

(2) From the perspective of litigation subjects, the plaintiff changed from a sender enterprise or individual to a courier service provider, and the change of litigation status of the parties accelerated during this round of epidemic. In 20021year, the court accepted 29 cases of express delivery service contract disputes, among which 23 were plaintiffs by sender enterprises or individuals, and only 6 were plaintiffs by express delivery service enterprises, with a contrast ratio of 4:1; Of the 16 cases accepted in 2022, only 5 were cases in which enterprises or individuals acted as plaintiffs, while the cases in which express service enterprises acted as plaintiffs were 1 1, with a contrast ratio of 1:2. Among them, among the 1 1 cases accepted since the epidemic in March, express delivery service.

(3) Judging from the appeal filed in this case and the facts on which it is based, the sender claims the loss of express mail and claims to change the express mail fee to the express service enterprise. Among the 29 disputes over express delivery service contracts accepted on 20021,75% of the cases were that the sender claimed compensation from the express delivery service company because the express delivery was lost, damaged or impersonated, and the scope of compensation claimed covered the loss of express delivery fee, loss of goods and punitive damages. However, in the 16 cases accepted in 2022, nearly 70% of the cases were that the courier service enterprises claimed courier fees from the sender enterprises or individuals for providing courier services, and the complaints mainly focused on courier fees, liquidated damages or overdue interest losses. The contrast between the two is obvious.

3. Difficulties in dispute resolution of express delivery service contract under the background of resumption of work and production and tips for matters needing attention in dispute resolution

Express service contract dispute is the fourth cause of action under service contract dispute, which is similar to other types of service contract disputes in legal relationship. However, with the corresponding market-oriented factors and the enhancement of market-oriented visibility characteristics, it is difficult to identify and handle such cases, and the requirements for handling disputes in express service contracts need to be further refined.

(1) With the gradual acceleration of the pace of resumption of work and production, the handling of express service contract disputes under the background of epidemic prevention and control gradually presents the following difficulties and characteristics.

1. The improvement of psychological expectation leads to the improvement of the requirements and acceptance of the process and results, and the contradiction is easy to escalate. The demand and requirements of the parties for express delivery service have gradually changed from the basic guarantee demand and basic living material demand of "it is good to have it, it is good to arrive, and it is good to use it" to the diversified demand and optimization demand of "the more complete the better, the faster the better, the simpler the better". After a long-term blockade, boosted by the signal of resumption of production and positive psychological effects, as well as the requirements for the timeliness and process of express delivery service, the types and quality of serviceable products will be improved accordingly.

2. The legal basis is intertwined, which makes it easier for the parties to have a certain degree of deviation in understanding and understanding, and requires higher accuracy and universality of legal interpretation. On the one hand, there is a certain overlap between express service contract disputes and cargo transportation contract disputes. Judging from the feedback of case information, express delivery enterprises do not distinguish between express delivery business and cargo transportation business in actual operation, and mainly divide the operation process according to the value and weight of goods, which makes it difficult to identify the nature of the case, the subject of rights, the behavioral requirements and the scope of responsibility of express delivery service disputes at the source. On the other hand, in addition to the Civil Code of People's Republic of China (PRC), the Postal Law of People's Republic of China (PRC) and the Provisional Regulations on Express Delivery are special laws and regulations, which also make special provisions on express delivery, clarify the rules for receiving, posting and delivering express delivery, and refine the rules for handling undeliverable and unreturnable express delivery and compensation for express delivery losses. However, the contract between the two parties does not have the above provisions, or even not. How to ensure the autonomy of the parties, speed up the circulation of express delivery, and ensure that the rights and obligations of all parties are guaranteed has put forward higher requirements for judges' legal application and legal interpretation ability.

3. Multiple factors cascade, which increases the difficulty of judging causality, and the focus of disputes between the two sides is easy to concentrate but difficult to find out. During the period of epidemic prevention and control and resumption of production, the quality of express delivery service will be affected by various factors, such as the requirements of local traffic control or temporary prevention and control policies, which will cause the goods to stay in a certain link or even return to the original road. Once the courier is lost or deteriorated, it will be more difficult to share the responsibility and determine the size of the responsibility; For another example, the original point-to-point distribution method was mostly replaced by the collection of doormen, the placement of collection points, and the centralized collection of contacts such as "heads". Once the courier is lost, deteriorated, damaged or short of internal parts, it is more difficult to find out the causal relationship; For another example, during the epidemic, the property and volunteers are often responsible for disinfection and complete the "final 100 meter" distribution. How to determine the responsibility subject of delivery completion, risk transfer and disinfection and storage will also become doubts and difficulties in the trial.

4. Enterprises are mixed, the ability to resist market risks and the ability to pay are very different, the ability to overcome and solve disputes is uneven, and mediation is more difficult. Affected by the epidemic, many enterprises have difficulties in operating liquidity. With the promotion of resumption of work and production, enterprises are faced with multiple operational dilemmas, such as short-term adjustment, phased compensation, capital withdrawal and re-planning, which makes the phenomenon of arrears of courier fees frequent. As mentioned earlier, during the epidemic prevention and control period, the case that the express delivery company as the plaintiff advocated a large proportion of express delivery fees also confirmed this objective situation. Compared with courier service enterprises as defendants, the difficulty of mediation is not the identification of service quality defects when the sending enterprises are defendants, but the rigid financial difficulty of diversified operations, and the difficulty of mediation is bound to increase. Even if the judgment is handled, whether it can be implemented smoothly will bring difficulties, and even become the last straw to crush small and micro enterprises to resume work and production.

(2) In view of the above-mentioned objective difficulties such as psychological expectation gap, staggered legal relationship, difficulty in finding out facts, and increased difficulty in mediation, it is suggested to pay attention to the following points.

1. Keep a modest and polite attitude and spend rationally. Strive to create a rational consumption concept of * * * win-win and interdependence between express delivery enterprises and senders (consignees) under the background of epidemic prevention and control. On the one hand, disputes and contradictions caused by epidemic situation or epidemic prevention and control measures, such as delivery time limit and package integrity, which do not affect the realization of the purpose of the contract, should be resolved through negotiation and mediation as far as possible to show humility and courtesy. On the other hand, efforts should be made to establish a rational consumption pattern based on ensuring basic needs and purchasing daily materials, and apply the vitality brought by express delivery service to the people's livelihood and customs that are most needed.

2. Grasp the legal and reasonable characteristics and deal with them according to law. Fully grasp the characteristics of the express service contract itself, that is, it involves not only transportation links, but also service links such as receiving, sending, sorting and delivery of goods, and its target is to provide services rather than just delivery of goods. For example, the timeliness of instant delivery services on consumer platforms such as Hungry, Meituan and Boxma is obviously different from that of conventional transportation contracts, while customers contact riders through service platforms such as flash delivery and running errands, and riders buy or pick up goods at specific locations according to their instructions, and then immediately deliver them to designated locations and personnel. In this mode, the service attribute is more obvious. Therefore, under the characteristics of service, especially personalized service, respecting the autonomy of the parties' contractual will, taking into account the particularity and limitations under the background of epidemic prevention and control, comprehensively reviewing facts and evidence, judging rights and obligations, and clarifying the scope of responsibility and compensation can make the treatment results more legal, compliant and reasonable.

3. Improve the interpretation of emotion and reason, and clarify the rights and responsibilities. Accurately grasp the legislative spirit of the Civil Code of People's Republic of China (PRC), comprehensively grasp and determine the responsibilities of all parties according to the specific provisions of the Postal Law of People's Republic of China (PRC) and the Provisional Regulations on Express Delivery, and according to the contractual agreement between the two parties. For the situation that the liquidity of funds is difficult for a short time due to the epidemic, and the courier fee and freight can't be paid off, we will actively guide both parties to negotiate and adopt phased performance, alternative performance, delayed performance, etc., to help enterprises in difficulty recover their development and reduce the adverse impact of the epidemic on the development of enterprises. For the performance risk caused by epidemic prevention and control, it is necessary to find out the facts of express delivery, distribution and delivery. The stage of judging the default facts such as loss and deterioration of express delivery is that the express delivery is lost, deteriorated and not disinfected in time before delivery, or the express delivery is not counted in time after being collected by the guard at the collection point, improperly kept and excessively disinfected, or the volunteers cannot meet the requirements of timely delivery, or the recipients are lazy in picking up the goods. After investigation, if the fact of breach of contract occurs before delivery, the liability for compensation shall be determined according to the insurance rules agreed between the courier company and the sender; For uninsured express mail, the liability for compensation shall be determined according to the contract, loss and fault degree. If the courier company fails to deliver or delays delivery due to prevention and control measures, it can be considered as force majeure, and the courier company can claim exemption or partial exemption. If the fact of breach of contract occurs after delivery or before delivery, it is judged whether to handle and identify the responsibility and risk-taking scope in the express service contract according to the different identities and behavior nature of each participant.

4. Guide mutual assistance and mutual benefit, promote the harmonious settlement of disputes, and overcome difficulties together. We must always adhere to the spirit of paying equal attention to protecting the legitimate rights and interests of senders and recipients according to law and promoting the stable and orderly development of express delivery enterprises. When handling disputes, we should give full consideration to the impact of epidemic situation or epidemic prevention and control measures on both sides, not only to protect the legitimate rights and interests of individuals or enterprises, but also to create due conditions for the survival, development and orderly operation of express delivery enterprises during their resumption of production. At the same time, actively promote mediation in advance and the treatment of complaint sources, make full use of working mechanisms such as comprehensive treatment of complaint sources, one-stop docking of complaint mediation, and multi-platform dispute resolution, give full play to the effectiveness of linkage working mechanisms, increase communication and mediation, mediate contradictions and disputes to the grassroots in time, and strive to create a good business environment.

Fourthly, it combs the rights and responsibilities of the main body of the express service contract and the optimization measures under the requirement of normalization of resumption of work and production.

Justice is a passive intervention afterwards. Once resorting to the court, it means that the rights of the parties have been substantially damaged and the contradictions between the two sides have intensified. At present, the epidemic prevention and control in Shanghai is gradually changing to normal prevention and control. As a key link connecting the supply side and the consumption side, the express service industry should strengthen the awareness of rights and responsibilities of express delivery enterprises, increase policy support, strengthen judicial guidance, and ensure the safe, orderly and in-depth promotion of the resumption of production in various industries in our city.

(1) Strengthen judicial guidance to clarify and optimize the business environment.

1. Clarify the judicial position by publishing typical cases, white papers, news propaganda, etc. Since the outbreak of the Xinguan epidemic, Shanghai courts have actively played the role of judicial function, formulated Guiding Opinions on Giving Full Play to Judicial Function to Provide Judicial Services and Guarantees for Preventing and Controlling the Epidemic according to Law, issued a series of Questions and Answers on Applicable Laws in Handling Cases of COVID-19 Epidemic, and issued typical cases involving COVID-19 epidemic in Shanghai courts, which provided judicial guarantee for preventing and controlling the epidemic and resuming production. As for the new features and new problems of express delivery service contract disputes during the epidemic period, we should actively sort out and judge, strengthen judicial guidance to the express delivery industry by releasing typical cases, white papers and news propaganda, help enterprises resume their work and production, and promote the comprehensive recovery of economic and social order.

2. Play a diversified dispute resolution mechanism. Make full use of the Shanghai court's one-stop multi-dispute resolution platform, entrust designated mediation, keep close contact with medical and health departments, public security departments, judicial administration departments, market supervision departments and other units, give timely feedback to the problems encountered by express delivery service enterprises in the process of resuming work and production, strengthen complaint docking and complaint source management, take advantage of trade unions and industry associations, give full play to the joint efforts of multi-dispute resolution mechanisms, flexibly handle disputes between express delivery service industries and individuals and enterprises, and resolve contradictions and disputes at the grassroots level. By purchasing services, we will extensively recruit relevant professionals as mediators, build a diversified mediation team with high qualification level, deep theoretical foundation and strong business ability, and play the role of diversified dispute resolution mechanism as a "diverter valve" in express service contract disputes.

3. Relying on the wisdom court, optimize the litigation experience of resuming work and production. At present, the city is about to resume work in an all-round way, and the court is the main place where the parties focus on litigation, mediation and enforcement, and the pressure of epidemic prevention and control is still relatively high. Actively use the achievements of the construction of smart courts, and try to handle them online as much as possible to avoid the gathering of people; For cross-domain litigation services, especially foreign-related commercial and maritime disputes related to the epidemic, it is necessary to improve the online litigation service process, issue operational guidelines in time, ensure that all aspects of online litigation are legal, standardized, clear and simple, minimize the impact of the epidemic on the parties' exercise of litigation rights, and use scientific and technological strength to improve the ability to resolve contradictions and disputes and litigation services.

(b) Increase laws and policies that support and help development and seek stability.

1. Guide financial resources to tilt towards the express delivery industry in stages. At this stage, financial institutions should give priority to the vanguard role of the express delivery industry in the stage of resuming production, and give preferential policies to high-quality express delivery enterprises with stable operation but lack of funds. It is suggested to handle cases of premature maturity and unilateral termination of loan contracts cautiously, communicate actively, and try to delay disputes by extending loans, repaying loans by installments, and increasing guarantees. Give full play to the leverage of loans and take the initiative to "increase" the development resilience of express delivery enterprises with temporary operational difficulties.

2. Increase the service of the express delivery industry to help enterprises during the epidemic. Find out as soon as possible about the resumption of work and production of express delivery business, understand the needs and difficulties of enterprises to resume work and production, set up a special service window for resumption of work and production through WeChat official account, small program and hot phone, issue guidelines for resumption of work and production at two levels in urban areas, summarize and sort out the policies of governments at all levels to benefit enterprises, and provide targeted policy propaganda, appeal coordination, guidance and consultation and other services for express delivery enterprises to help enterprises overcome the impact of the epidemic.

3. Implement a series of policies to support the express delivery industry. Through the introduction of a series of policies, we will fully implement measures such as tax reduction and fee reduction, rent reduction and exemption, financial subsidies, and helping enterprises stabilize their jobs, and strive to help express delivery enterprises decompress by reducing costs. At the same time, judge the upstream and downstream blocking points, and timely introduce targeted policies to ensure the stable and smooth inter-provincial express logistics, thus helping enterprises in various industries to resume work and production.

4. Strengthen the emergency response of epidemic prevention and control in express delivery industry. Strengthen the supervision of industry associations on express delivery enterprises, guide them to formulate full-time nucleic acid detection, closed control and other emergency disposal plans, establish good nucleic acid monitoring points, isolated observation areas, and do a good job in epidemic prevention and necessary living materials reserves. Strengthen emergency drills to ensure that employees are familiar with emergency procedures and measures for epidemic prevention and control, and encourage express delivery companies to train exclusive nucleic acid technicians. Once an epidemic situation occurs, it should be placed in a temporary observation point for isolation at the first time, and people and things should be disposed of in accordance with relevant regulations.

(3) Strengthen the awareness of rights and responsibilities of express delivery enterprises, and strictly guard against strict control.

1. Adhere to epidemic prevention and control to reduce the risk of transmission. Under the background that the express delivery is still overstocked and the courier personnel are not fully in place, under the background of epidemic prevention and control, strict internal control is still particularly important. Continue to implement the requirements of nucleic acid detection and antigen self-test for all employees, and realize daily self-health monitoring during work; Adhere to place disinfection, on-the-way disinfection, vehicle disinfection and pre-departure disinfection, and implement disinfection requirements throughout the process; Provide employees with enough epidemic prevention materials such as masks and disinfection products, take protective measures in front-end collection and terminal distribution, and adopt non-contact distribution to reduce the risk of "object-to-object transmission".

2. Strengthen service management and reduce litigation risk. The express delivery industry relies heavily on employees, so it is necessary to guard against management omissions and service decline caused by epidemic prevention and control. In the case that the epidemic situation has steadily improved and the control impact has weakened, we should strictly abide by the special norms of General Principles of Civil Law of People's Republic of China (PRC), Postal Law of People's Republic of China (PRC) and Provisional Regulations on Express Delivery to avoid the loss, deterioration, damage or fraudulent use of express mail. Strengthen the pre-job training of couriers, improve the awareness of epidemic prevention, standardize actual operation and reduce risk friction. Before filling in the express waybill, the sender shall promptly remind him to read the terms of the contract, abide by the relevant provisions prohibiting delivery and restricting delivery of articles, verify his identity, and ensure the safety of express delivery through unpacking inspection and counter inspection; Inquire about the category of delivered articles in time, remind the sender of declare in advance's valuables, fill in the name, quantity and value of the articles and the name, address and telephone number of the recipient in detail, and inform the fresh articles of possible detention risks, relevant insurance rules and insurance services; Pay attention to taking photos of important links and nodes, such as unpacking, disinfection and delivery. In the case that it cannot be directly delivered to the recipient due to the influence of prevention and control measures, contact the recipient by telephone in time, inform the delivery place and the recipient and prompt for pickup, so as to reduce the increased risk due to multi-link intervention.

3. Strengthen contract management and avoid operational risks. Focus on the courier service contract with the unit as the sender, comprehensively sort out the contracts of the courier company in all aspects such as leasing, financing and business, follow up and communicate with the counterparty with the risk of default in time, and do a good job in auditing, confirming and collecting. If negotiation fails, rights can be actively safeguarded through conciliation, litigation, mediation and arbitration to reduce the impact on the company's revenue. Actively communicate the possible risk of default, and strive to reach a settlement plan such as staged performance, alternative performance and delayed performance, and strive for the support of the other party. If there is evidence to prove that the express delivery service has irregular operation, compensation shall be made in a timely manner according to the legal provisions and the contract, and the risk shall be hedged through the corresponding insurance.

4. Implement living security and solve the contradiction between supply and demand. During the epidemic, the specific measures for prevention and control in different jurisdictions are different, which makes it difficult for some express delivery employees to enter and leave their residences. Effectively improve the working and living conditions of express employees, so that they have no worries, so as to join in the resumption of work and production. At the same time, during the epidemic period, employees' labor contracts will not be dissolved or terminated at will, and wages will be paid on time through transfer, post rotation and rotation to protect their right to rest. During the epidemic period, employees' demands for labor remuneration and work-related injury insurance benefits should be carefully listened to and handled flexibly to protect employees' labor rights and interests and solve the contradiction between supply and demand of labor in the express delivery industry during the resumption of work.