Details of the case
Appellant (defendant in the first instance): Tongshun Dairy Farm (creditor).
Appellant (defendant in the first instance): Liang Chunsheng (guarantor)
Appellant (defendant in the first instance): Wu Dongli (guarantor).
Appellee (plaintiff in the original trial): Shang Hui Commercial Factoring Co., Ltd. (Factoring).
1.2065438+On April 25th, 2009, Tongshun Farm signed a cooperation agreement with Shang Hui Factoring Company to apply for financing from Shang Hui Factoring Company.
2. In order to guarantee the creditor's rights, Shang Hui Factoring Company signed a maximum amount guarantee contract with Liang Chunsheng, director of Tongshun Farm, and his spouse Wu Dongli, providing the maximum amount of joint liability guarantee for financing.
3.2065438+On June 2, 2009, Tongshun Farm handled factoring financing with Shang Hui Factoring Company according to the fresh milk purchase and sale contract signed with Dingzhou Yili, and both parties signed a factoring business contract, stipulating that Shang Hui Factoring Company would provide financing to Tongshun Farm for its daily operation.
4. After that, Shang Hui Factoring Company issued funds to Tongshun Farm according to the contract.
5. Tongshun Farm transferred all its accounts receivable from May/KLOC-0 to February 30, 2020 in Dingzhou Yili to Shang Hui Factoring Company.
6. After Tongshun Farm informed Dingzhou Yili to transfer the accounts receivable, Shang Hui Factoring Company registered the transfer of the above accounts receivable.
7. On July 1 2020, Dingzhou Yili informed Shang Hui factoring company of the breach of the purchase and sale contract of raw milk in Tongshun Farm according to the contents of the Notice of Assignment of Accounts Receivable. Accordingly, Shang Hui Factoring Company announced that Tongshun Farm Finance had expired in advance. Issue the Notice of Early Maturity of Factoring Financing to Tongshun Farm, and ask Tongshun Farm to repay all the factoring balance and interest. Tongshun Farm failed to repay the loan on the agreed date after receiving the notice.
8. Therefore, Shang Hui Factoring Company sued Tongshun Farm, demanding that it bear the repayment responsibility, and Liang Chunsheng and Wu Dongli were jointly and severally liable for the debt.
Judgement result
1. The court of first instance ruled that:
(1) Tongshun Dairy Farm shall repay the principal and interest of the financing loan to Shang Hui Commercial Factoring Co., Ltd. (including: principal 1 10,000 yuan, interest of 7,000 yuan, interest calculation standard: based on principal 1 10,000 yuan, the annual interest rate stipulated in the contract is 7%, starting from 2000. Pay the penalty interest according to the principal of RMB 6,543,800,000, which is 50% higher than the financing interest rate agreed in the contract, that is, pay the penalty interest at the annual interest rate from July 2020 1 1 day to the settlement date;
(2) Liang Chunsheng and Wu Dongli are jointly and severally liable for the above payment obligations.
2. The court of second instance ruled:
Reject the appeal and uphold the original judgment.
Focus of this case: Does the court of first instance have jurisdiction over this case?
Court view
The court of first instance held that:
Article 12 of the factoring business contract involved stipulates the dispute settlement method and the competent court: any dispute arising from the performance of this contract can be resolved through consultation; If negotiation fails, it can be settled through litigation in the people's court of Party A's domicile or the defendant's domicile. According to Article 34 of the Civil Procedure Law of People's Republic of China (PRC), the parties to a dispute over a contract or other property rights and interests may, through a written agreement, choose the people's court of the place where the defendant's domicile, the place where the contract is performed, the place where the contract is signed, the plaintiff's domicile, the place where the subject matter is located and so on are actually related to the dispute. The domicile of Party A in this case is No.8 Jinshan Avenue, Jinshan Development Zone, Hohhot, and it is agreed that it can be settled in the people's court where Party A resides, giving the court of first instance jurisdiction. In addition, the defendants Liang Chunsheng and Wu Dongli in this case did not raise any objection to jurisdiction during the submission of the defense, but they responded to this case. According to the provisions of Article 127 of the Civil Procedure Law of People's Republic of China (PRC), the parties shall raise an objection to jurisdiction during the submission of the defense, and if they fail to raise an objection to jurisdiction and reply, it shall be deemed that the people's court being sued has jurisdiction.
The court of second instance held that:
In this case, both the Factoring Cooperation Agreement and the Factoring Contract signed by Shang Hui Factoring Company and Tongshun Farm stipulate that disputes arising from the performance of this contract can be settled by both parties through consultation. If negotiation fails, a lawsuit may be brought to the people's court of Party A's domicile or the defendant's domicile. The annex to the Factoring Business Contract states that the domicile of Party A's Shang Hui Factoring Company is No.8 Jinshan Avenue, Jinshan Technology Development Zone, Hohhot. Therefore, according to the provisions of Article 34 of the Civil Procedure Law of People's Republic of China (PRC) on agreed jurisdiction, Shang Hui Factoring Company chose the court of Party A's domicile as stipulated in the contract to file a lawsuit, which is in line with the legal provisions and contractual stipulations, and the court of first instance has jurisdiction over this case. In addition, Tongshun Farm, Liang Chunsheng and Wu Dongli did not raise any objection to jurisdiction during the period of giving evidence and defending, so there was no procedural violation in the trial of this case by the court of first instance.
Views and Suggestions of Guo Qiang Lawyers Team
In litigation cases, the handling of jurisdiction issues bears the brunt, and so does factoring cases. In this case, the factor sued the creditor and the guarantor at the same time, and the court supported the determination of jurisdiction by factoring contract. The case of this case is relatively simple, so I chose this case for analysis, in fact, in order to attract jade, and I intend to talk to you about the jurisdiction of factoring cases.
1. The factoring contract must specify jurisdiction.
In the process of handling disputes over factoring contracts, the most basic issue is jurisdiction. Jurisdiction not only affects the convenience of litigation, but also races against time. There are countless cases that have no choice but to extend the time limit for litigation because of jurisdiction issues. Jurisdiction is based on the principle of voluntariness and autonomy of the parties. If there is an agreement in the contract, it shall be as agreed. If there is no agreement, it shall be in accordance with the law, which requires both parties to negotiate jurisdiction in advance in the process of concluding the contract.
So what steps can be taken to define jurisdiction? Shang Hui's factoring practice in this case is worth learning. Shang Hui Factoring is registered in Shenzhen, and according to the case, its office is in Hohhot. In practice, the registered place of many factoring companies does not match the office (considering the local preferential policies), but it is not advisable to simply set the jurisdiction as the registered place when signing the factoring contract without considering the actual situation. To sum up, it is generally required to define the jurisdiction, and the more detailed the better, the clearer the point, in order to achieve the target effect.
2. According to the current mainstream view of the court, the jurisdiction of factoring contract disputes is summarized as follows:
(1) If the creditor is the defendant in the factoring dispute, the jurisdiction of the case is determined by the factoring contract.
(2) If the debtor is the defendant in the factoring dispute, unless otherwise agreed by the non-factoring parties and the debtor, the jurisdiction of the case shall be determined by the basic contract.
(3) In factoring disputes, if the guarantor is the defendant, the jurisdiction of the case shall be determined by the guarantee contract.
(4) In a factoring dispute, if the creditor or debtor is the defendant, the jurisdiction of the case shall be determined by the basic contract.
(5) If in a factoring dispute, the creditor or guarantor is the defendant, the factoring contract is the master contract and the guarantee contract is the slave contract, then the jurisdiction of the case should be determined by the factoring contract.