(1998) ZhongjingziNo. 184
Appellant (defendant in the original trial): Hunan Machinery Import & Export (Group) Co., Ltd., domiciled at No.4 Wuyi East Road, Changsha City, Hunan Province.
Legal Representative: Peng, chairman of the board of directors of this company.
Authorized Agent: Wang Aiping, lawyer of Hunan Chongmin Law Firm.
Appellant (defendant in the original trial): Hainan International Leasing Co., Ltd., domicile: Floor 19, Dihao Building, Zhujiang Plaza, Haikou City, Hainan Province.
Legal Representative: Wang, general manager of the company.
Authorized Agent: Jing Wong, lawyer of Hainan Maintenance Law Firm.
Appellee (plaintiff in the original trial): Ningbo Oriental Investment Co., Ltd., domicile: 8th floor, No.93 Zhongshan East Road, Haishu District, Ningbo City, Zhejiang Province.
Legal Representative: Chen Xingwei, chairman of the board of directors of this company.
Authorized Agent: Zhou, lawyer of CITIC Law Firm.
The appellant Hunan Machinery Import and Export (Group) Co., Ltd. (hereinafter referred to as Hunan Company) and the appellant Hainan International Leasing Co., Ltd. (hereinafter referred to as Hainan Company) refused to accept the civil judgment of Zhejiang Higher People's Court (1997) Zhejiang MinchuziNo. 15 for representing the appellee Ningbo Oriental Investment Co., Ltd., and our court formed a collegial panel to conduct the trial according to law, and the trial has now ended.
It is found out that on June 1996 65438+ 10/0, Hunan Company faxed the power of attorney to Dongfang Company, entrusting its employee Han Lu to sign various import agency agreements with Dongfang Company on its behalf. The entrustment period is one year from the date of signing. In the same year1October 20th, 65438, Lu Han, a salesman of Hunan Company, signed two import agency agreements with Dongfang Company with the power of attorney of Hunan Company, numbered 96tz00 1 and 96tz003. 96tz00 1 Agreement stipulates that Dongfang Company will import computer parts with a total price of US$ 2,885,355 on behalf of Hunan Company, and the port of arrival is Shanghai; Entrusted by Hunan Company, Oriental Company imported the goods agreed in the agreement to Hong Kong Heli Co., Ltd.; According to the requirements of Hunan Company, Dongfang Company makes external inquiries, signs contracts, executes external contracts and opens letters of credit until the goods arrive at the designated destination port; After the goods arrive at the destination port, Hunan Company is responsible for customs declaration, inspection, unloading, commodity inspection, tally and all matters at the dock; The agency fee of Oriental Company is 3%. Hunan Company will deposit 65,438+00% of the total amount of the L/C into the account of Dongfang Company before opening the L/C, and 65,438+00% into the account of Dongfang Company before the documents are accepted. The remaining 80% of the payment must be guaranteed by a third party recognized by Dongfang Company. Hunan Company promises to deposit all the money (including interest) under this agreement into the account of Dongfang Company within 240 days from the date of receiving the letter of credit. Otherwise, the expenses and responsibilities arising therefrom shall be borne by Hunan Company, and the guarantor shall be jointly and severally liable. In addition, the agreement also stipulates cargo insurance, cargo exchange, quality claim and force majeure. Dongfang Company and its legal representatives Zhou Keqin, Hunan Company and its legal representative Peng Hui respectively stamped and signed the agreement. The content of the 96tz003 agreement is the same as that of the 96tz00 1 agreement, except that the total amount of the agreement is 2,970,847 US dollars. On June 22nd of the same year, Dongfang Company and Hunan Company signed an agency import agreement for communication equipment with the number of 96tz0022 and the price of 2.9 million US dollars. The terms of payment require Hunan Company to deposit the full amount (including interest) into the account of Dongfang Company within 270 days after the acceptance of the letter of credit. Other terms are the same as the above 96tz00 1 agreement. On June 25th of the same year, Dongfang Company and Hunan Company signed two Italian marble import agency agreements again, numbered 96tz00 17 and 96tz00 18, with the prices of 2,997,500 dollars and 2,888,500 dollars respectively, and the other contents were the same as the above-mentioned 96tz0022 agreement. Hainan Company issued irrevocable letters of guarantee to Dongfang Company on October 29th, April 22nd and June 6th, respectively, in the same year, which provided joint guarantee for Hunan Company to fulfill the agency import agreement and promised that Hunan Company would be jointly and severally liable for timely payment of agency fees, payment for goods and other payables. This guarantee will not be affected or invalid due to liquidation, bankruptcy, reorganization, reorganization, personnel changes or economic changes of the principal or guarantor; This guarantee is irrevocable and unconditional, and will remain valid until the principal pays all agency fees, payments and other payables to the agent; When the principal fails to pay the agency fees, payment and other payables on time according to the agency import agreement and related contracts, he agrees to perform the guarantee responsibility within three days after receiving the written notice, and pay off all the agency fees, payment and other payables owed by the principal according to the agency import agreement and related contracts; According to the agency import agreement and related contracts, there is no written objection to the amount of funds owed by customers; This guarantee is an independent guarantee; The guarantee liability will not be affected by any grace period and delayed payment period given by Dongfang Company to customers, nor will it be affected by Dongfang Company's delay in exercising the rights conferred by the agency import agreement or related contracts; This letter of guarantee will not lose its guarantee liability due to the invalidation of the agency import agreement due to the client's reasons.
In the same year1October 25th, 65438, Dongfang Company signed a computer accessories sales contract with Hong Kong Heli Industrial Co., Ltd., with a total contract amount of US$ 5,856,202. On February 8 and June 8 of the same year, Hunan Company entrusted Hong Kong Heli Industrial Co., Ltd. to pay 20% of the letter of credit and 3% of the agency fee to Dongfang Company in time. On June 25th of the same year, Dongfang Company signed two Italian marble sales contracts with Hong Kong Yuanshun Development Co., Ltd., with a total contract price of 5.886 million US dollars. On August 5th of the same year, 15, Dongfang Company signed a communication equipment sales contract with Hong Kong Bailitu Co., Ltd., with a total contract amount of 2,900,000 US dollars. On February 15, March 7 and June 25 of the same year, Dongfang Company entrusted China Industrial and Commercial Bank Ningbo Branch to open five irrevocable documentary letters of credit, the letter of credit numbers were LC333960 189, LC33396025 1, LC960798, LC960797 and LC respectively. The amounts are $2,970,847, $2,885,355, $2,888,500, $2,997,500 and $2,900,000 respectively, making a total of $65,438+$04,642,202. After the acceptance date of the above-mentioned letter of credit arrives, Dongfang Company informs China Industrial and Commercial Bank of China Ningbo Branch that the documents are in conformity, and at the request of Hunan Company, confirms to China Industrial and Commercial Bank of China Ningbo Branch that it agrees to pay. On May 24th, September19th and February16th of the same year, Hanlu issued three letters of commitment signed by Dongfang Company and stamped with the seal of Hunan Company, confirming that it had received the full set of original bills of lading under the above five letters of credit, and promised to pay all the balance before the date agreed in the agency import agreement. To sum up, Hunan Company should pay the payment for goods 14642202 USD and the agency fee of 439266.06 USD to Dongfang Company as agreed. However, Hunan Company paid the payment and agency fee of $23084 19.68 to Dongfang Company from February 9 to June 2 of the same year, and the remaining payment of $ 12773048.38 was not paid, so Hainan Company failed to perform the guarantee responsibility.
In addition, it was found that the goods agreed in the agency import agreement in this case were not actually imported. Hong Kong Heli Industrial Co., Ltd. is a subsidiary of Hainan Company in Hong Kong, and Lu Han is the general manager of the company.
1On June 2, 1997, Dongfang Company sued the Higher People's Court of Zhejiang Province on the grounds that Hunan Company failed to fully fulfill its payment obligations stipulated in the agency import agreement and Hainan Company failed to fulfill its guarantee obligations, demanding that Hunan Company be ordered to immediately repay the arrears of US$ 5,270,456.38 (followed by an additional claim of US$ 7,502,592) and bear the litigation costs of this case, and Hainan Company shall bear joint and several liabilities.
After trial, the Higher People's Court of Zhejiang Province held that the import agency agreement signed by Dongfang Company and Hunan Company was true and did not violate national laws and regulations, and should be confirmed to be valid. Hainan Company's intention to provide guarantee for the settlement funds payable by Hunan Company is true, and the agreed guarantee method conforms to the law and should also be confirmed to be effective. Oriental Company fulfilled its obligations of signing contracts, opening letters of credit and negotiating payment. After receiving the bill of lading, Hunan Company disposed of the goods under the bill of lading, and its failure to pay Oriental Company as agreed was a breach of contract, and it should bear the liability for breach of contract for overdue payment according to law. Hainan Company shall be jointly and severally liable for the debts of Hunan Company promised in the letter of guarantee. According to Article 3 1 of the Economic Contract Law of the People's Republic of China, Article 18 of the Guarantee Law of People's Republic of China (PRC), Article 128 and Article 130 of the Civil Procedure Law of People's Republic of China (PRC), the court made the following judgment:1997. The case acceptance fee is 577,609 yuan, and the property preservation fee is 2 1825 1 yuan, totaling 795,860 yuan, which shall be borne by Hunan Company, and Hainan Company shall be jointly and severally liable.
Hunan Company refused to accept the above judgment of the court of first instance and appealed to our court, claiming that (1) the court of first instance seriously violated the law in the trial procedure. During the first trial, the appellant twice requested to summon the case and an important witness, Changsha Public Security Bureau, to testify in court, which proved that the case was indeed a criminal crime rather than an economic dispute. However, the court refused to appear in court on the grounds that the Public Security Bureau could not testify in court, depriving the appellant of the right to give evidence. (2) This case is a criminal case in which the criminal suspect Lu Han and others used the long-term letter of credit to defraud the state property by forging documents, low-priced AG, taking foreign exchange and other means. Changsha Public Security Bureau has filed a case for investigation on April 29th for fraud. 1997. According to the judicial interpretation of the Supreme People's Court, the case should be transferred to Changsha Public Security Bureau for handling by applying the principle of criminal priority.
Hainan company also refused to accept the above judgment and appealed to our hospital, saying:
(1) This case is a major criminal case in which Lu Han, an employee of Hunan Company, used the letter of credit to defraud, not an economic dispute case. Lu Han, an employee of Hunan Company, forged the seals of Shanghai Hengli Economic and Trade Company and Shanghai Changjiang Computer Group Company, signed fake contracts, first defrauded Hunan Company, Dongfang Company and Hainan Company, created an import contract fraud case with no actual buyers and sellers, and used the means of issuing forward letters of credit by agents to negotiate abroad, successively defrauding more than 30 million US dollars. During the trial of the first instance of this case, the appellant and Hunan Company provided the court of first instance with the evidence materials of Changsha Public Security Bureau to investigate this case, and asked Changsha Public Security Bureau to testify as a witness in court, but it was rejected by the court of first instance, which deprived the appellant and Hunan Company of their legal rights unreasonably.
(2) The first-instance judgment that Hunan Company disposed of the goods under the bill of lading after receiving the bill of lading has no factual basis. The only goods in this case are computer sockets worth thousands of dollars, which have nothing to do with the agency import agreement. There is no evidence that the goods have been imported or that Hunan Company has received the goods, and there is no complete set of original bills of lading or cargo declaration forms necessary for accepting usance letters of credit. Therefore, this case is a major criminal case and civil trial procedure should not be applied. The original judgment should be revoked and the case should be transferred to the public security organ for investigation.
Eastern Company did not give a written reply. During the second trial of our hospital, it was stated that the agency import agreement in this case was legal and valid, and it was signed with the authorization of Hunan Company and its legal representative, and Hainan Company issued an irrevocable letter of guarantee. Hunan Company and Hainan Company claim that Hanlu fraud has nothing to do with this case. There is no economic crime in this case, and the internal problems of Hunan Company do not affect its external responsibility. Hunan company repays the advance payment and interest according to the agency import agreement, and Hainan company undertakes the guarantee responsibility according to its letter of guarantee. The judgment of first instance found that the facts were clear and the applicable law was correct and should be upheld.
During the trial of the second instance in our hospital, at the request of the parties, the power of attorney issued by Hunan Company to Hanlu Company, the power of attorney entrusted to Hong Kong Heli Industrial Co., Ltd., the seal of Hunan Company and the signature of the legal representative Peng Hui on the agency import agreement were entrusted to the public security department for identification. The appraisal conclusion of the public security department is that the seal of Hunan Company on the power of attorney and payment power of attorney is consistent with the provided seal sample, and Peng Hui's signature is written by Peng Hui himself; The seal of the special seal for the contract of Hunan Company's Import Agency Agreement is inconsistent with the provided seal sample, and Peng Hui's signature was not written by Peng Hui himself.
We believe that Hunan Company has issued a power of attorney to Dongfang Company, authorizing Hanlu Company to sign various import agency agreements with Dongfang Company on behalf of Dongfang Company. Although it can't be proved that the seals on the import agency agreement and commitment letter are the seals of Hunan Company, Hanlu Company did seal them all, and Hunan Company has no objection to this. Therefore, Hunan company should be responsible for the civil activities of Hanlu within the scope of authorization. The agency import agreement signed by Hunan Company and Dongfang Company has no real trade background and has become a tool for Hanlu Company to defraud huge foreign exchange. Therefore, the disputed agency import agreement in this case is invalid, and the court of first instance found that the agency import agreement is invalid and should be corrected. The power of attorney issued by Hunan Company is the direct reason for the success of Hanlu fraud and the loss in this case. The company shall be liable to Dongfang Company, and compensate Dongfang Company for its interest loss and overdue fine. Hunan Company's claim that it should not bear civil liability on the grounds that it is suspected of committing a crime in this case is not supported by our court and should be rejected.
Although there is an agreement in Hainan Company's guarantee contract that "this guarantee will not lose its guarantee liability due to the invalidation of the agency import agreement due to the client's reasons", this independent guarantee method should not be adopted in domestic civil activities, so this agreement is invalid. Therefore, according to the first paragraph of Article 5 of the Guarantee Law, the guarantee contract shall be deemed invalid because the main contract is invalid. Although Hainan Company has no direct fault in the loss in this case, the letter of guarantee provided by Hainan Company has played a certain role in the payment of the external letter of credit of Dongfang Company, so it should bear the corresponding liability for compensation, which should be 50% of the unpaid amount of Hunan Company. The court of first instance ruled that Hainan Company was jointly and severally liable, and the judgment should be revised. Hainan Company's request to cancel the first-instance judgment and transfer the case to the public security organ for handling is not supported by our hospital.
To sum up, some facts of the original judgment were unclear, and some applicable laws were improper, so the judgment was changed. According to items (2) and (3) of Article 153 of the Civil Procedure Law of People's Republic of China (PRC), the judgment is as follows:
1. Maintain the first item of civil judgmentNo. 15 of Zhejiang Higher People's Court (1997).
2. The second item in the civil judgment of Zhejiang Higher People's Court (1997) ZheminchuziNo. 15 is: Hainan International Leasing Co., Ltd. bears the responsibility that Hunan Machinery Import and Export (Group) Co., Ltd. cannot repay 50% of the above debts of Ningbo Oriental Investment Co., Ltd.
3. Reject the appeal of Hunan Machinery Import and Export (Group) Co., Ltd. ..
The acceptance fee for the first-instance case is executed according to the judgment of the first instance, and the acceptance fee for the second-instance case is RMB 577,609, which shall be borne by Hunan Machinery Import and Export (Group) Co., Ltd.
This is the final judgment.
Presiding Judge: Li Jian
Judge: Wang Jun.
Authorized Agent: Money.
19991February 3 1 day
Clerk: Ren Xuefeng.