Zhejiang Ya Lin Tie Neckwear Co., Ltd. V. Ningbo Ruida Processing Contract Dispute Case

Zhejiang's elegant necktie Clothes & Accessories Dispute over processing contract of Ningbo Ruida international economic and Trade Co. Ltd.

[judgement]

1. In the course of the performance of the contract, the payment of a specific cause, the issuance of VAT invoices, and the contents of the contract are inconsistent.

Two, in the export agency transaction involving the three party relationship between producers, middlemen and export agents, the middleman and the agent exporter's behavior in the transaction conforms to the characteristics of joint operation, and the middleman and the agent exporter shall bear civil liability jointly and severally.

Three, the original effective judge has flaws in identifying facts, applying laws and explaining reasons, but if the result is correct, in accordance with the thirty-seventh provision of the Supreme People's Court on the interpretation of certain issues concerning the trial supervision procedure of the people's Republic of China Civil Procedure Law, the original judgment should be maintained after correcting the defects of the original effective judgment in the retrial judicial documents. The result of the decision.

[case index]

First instance: Shengzhou Municipal People's Court (2006) Sheng min two early word 1310th (December 19, 2007).

Second instance: the intermediate people's Court of Shaoxing (2008) Shaoxing two two (217th).

Retrial: Zhejiang Provincial Higher People's Court (2009) Zheshang fifth (May 22, 2009).

[case]

Plaintiff: Zhejiang attire necktie dress Co., Ltd.

Defendant: Ningbo Ruida international economic and Trade Co., Ltd.

Shengzhou people's court found that:

In October 3, 2004, Yin Yingbiao signed the "shirt processing agreement" with Jason garments in the name of Ningbo Jieshi Garments Co., Ltd., and agreed that the company commissioned the company to produce 42 women's shirts. 820, Ya Shilin company arranges the production according to the production process sheet provided by Jester company. Besides the main mark, the water mark and the tag, the excipient is provided by Jeffrey company, and the rest is made by Ya Shilin company. The fabric is provided by Ya Shilin to the Ya Shilin company. The production cost of each shirt is RMB 8 yuan. The company pays 70% of the plaintiff's total production cost before shipment, and the remaining 30%. Within 30 days after the shipment of the company, the processing cost of the finished product will be borne by the Jeff company according to the price of the sand washing plant. The company is responsible for transporting the products to the Shanghai warehouse designated by jerson company. The transportation cost will be borne by the company. In the meantime, Yin Yingbiao and his wife Huang Qiuhua fax the production process sheet to the company, and send them to the company to arrange production. Shirt fabric is transported directly to the company by fabric supplier.

In the production process of the company, the company paid the plaintiff RMB 514967.60 yuan in October 15, 2004, October 21st and November 9th through bank transfer. In October 15th of the same year, the company paid 281670 yuan for fabric business of Nantong Hua man yarn dyed fabric Co. Ltd. After the completion of the shipment, the company confirmed that the actual processing fee should be 133376.60 yuan. From November 30, 2004 to January 6, 2005, a total of 6 VAT invoices were issued by the company, amounting to 1089412.52 yuan. After receiving the above invoice, Ruida company has been certified and deducted.

It was also found that the company did not register for industrial and commercial registration in accordance with the law.

The prosecution of the company asked the company to pay 574444.92 yuan for processing contract (including fabric) and compensate for the loss of interest calculated by the company itself. The payment shall be paid within ten days after the judgment becomes effective.

Two, dismissed the remaining claims of the company.

According to the appeal of the company, according to the agreement of processing agreement, the company should pay all the processing fees within 30 days after shipment. We request that the company compensate the interest loss calculated by the company at the same time loan interest rate of the people's Bank of China since November 25, 2004.

According to the appeal of Ruida company, there is no legal relationship between the company and the company. The payment and acceptance of the invoice and the deduction of invoices are the requirements of the agency contract. Whether the specification or not does not change the nature of the act can not be recognized as a representation of rights and obligations, nor does it have the requisites for the transfer of debts. The amount of debt involved in the original judgment is obviously wrong. The original request was revoked and the litigant company's lawsuit was rejected.

The facts recognized by the intermediate people's Court of Shaoxing are consistent with the cognizance of the court of first instance. The trial found that: first, the behavior of the company is not in conformity with the basic characteristics of the export agent. Two. With regard to the amount of payables, the evidence provided by Rita is not enough to prove that it has paid part of the fabric to the fabric supplier for the company. The company claims that the company should pay 574444.92 yuan for processing and fabric costs, which is justified and should be supported. Three, about interest calculation. The processing agreement stipulate that the production cost should be paid within 30 days after shipment. The production cost should refer to the processing fee. However, because the evidence provided by Ya Shilin can not prove the specific time of delivery, the two sides have not agreed on the time limit for payment, so they request the company to pay the claim for the arrears from November 25, 2004 to the interest before the prosecution. No support. Accordingly, judgement:

Dismissed the appeal and upheld the original judgment.

Reda refused to accept the two adjudication and applied for a retrial to the higher people's Court of Zhejiang province.

The higher people's Court of Zhejiang province affirmed the facts recognized by the original and second instance and the part that the parties did not dispute. Another find out: first, during the first instance proceedings, the company provided the notarized Yin Yingbiao's "economic loss" calculated from the loan interest rate of the people's Bank of China in November 1, 2004.

The company argues that there is no processing contract relationship between the two sides. The company's receipt of VAT invoice and payment is based on agent's obligations. The company has no facts and evidence to prove that there is a legal relationship between the company and the company. Yin Yingbiao and Huang Qiuhua are not the managers of Rita's company. All the contacts are made by Yin Yingbiao in his personal name or in the name of Jason company, which is not registered by Yin Yingbiao. Request to dismiss the proceedings of the company.

[trial]

According to the trial of the Shengzhou people's court, the company has actually fulfilled its processing obligations according to the agreement of the shirt processing agreement. However, because of the fact that the company has not registered business registration procedures in accordance with the law, the payment behavior of the company and the certification and deduction of the value-added tax invoice are carried out on the rights and obligations of the company in the original processing agreement. As for the amount of processing fees, the two sides confirm that the actual payment should be 133376.60 yuan. For the fabric loan requested by the company, according to the custom of the transaction and the evidence provided by the parties, the fabric can be determined to be paid to the fabric supplier by the company. As a result, the company should pay 1089412.52 yuan for the deductible VAT invoice to pay for the processing and fabric payment of the company, deducting the amount of 514967.60 yuan, and the company should pay 574444.92 yuan to the company. Since the two sides have not agreed on the time limit for payment, it will not support the request from the company to compensate for the economic losses calculated in accordance with the lending rate of the people's Bank of China since November 1, 2004. However, since November 1, 2006, the company should compensate the interest loss of the company in accordance with the interest rate of the people's Bank of China at the same time. Accordingly, judgement:

First, Ruida company should pay a total of 574444.92 yuan for processing and fabric costs of the company, and compensate for the statement that the company has been in accordance with the relevant loans of the people's Bank of China in the same period since November 27, 2006, which is conducive to the fact that the company is in lieu of the company's lawsuit. Yin Ying Biao declared that there was a shirt processing relationship with the company, and that there was an agent in the company. The amount paid by the company to the company is paid according to its requirements. In the trial of first instance, Yin Yingbiao came to court to confirm his statement in the notarial document. Two, according to the evidence provided by Ruida company during the first instance, in September 1, 2004, Ruida signed a principal-agent export agreement with Yin Yingbiao, from September 1, 2004 to December 31, 2005, and Yin Yingbiao commissioned the company to act as an agent for export business. In the retrial hearing, the company confirmed that all products under the processing agreement had been exported in its name.

The Zhejiang Provincial Higher People's court held that: first, in the export trade business involving the three party relationship between the manufacturer, the middleman and the agent exporter, the manufacturer and the middleman signed the processing contract, and the broker and the agent exporter signed the export agency contract. According to the normal trading procedures, the trading subjects should fulfill their respective obligations according to their respective contract stages. However, for certain reasons, a portion of the export agent's payment will be paid to the manufacturer from its account, and the receipt of the VAT invoices issued by the manufacturer will be processed and certified. The people's court should take the facts of signing the contract between the transaction subjects as the basic basis and correctly identify the legal relationship among the trading subjects combined with the relevant circumstances of the whole case. In this case, Yin Yingbiao signed the shirt processing agreement with jasmine company in October 3, 2004 in the name of Jieshi company. The company did not register for business registration, and the fact that Yin Yingbiao and Huang Qiuhua, who were advocated by Jason company, did not have the corresponding evidence to prove the fact that when Yin Yingbiao and his wife were in the process of providing production process information and processing accessories to the company, the company agreed to settle accounts with Huang Qiuhua after completing the processing business. There is a contract for processing between Yin Yingbiao and Si. In the case of payment, VAT invoices and other parts of the agreement and the content of the agreement is not enough, it is not enough to identify the relevant reasons for the transaction contract changes. In addition, Yin Yingbiao also signed a principal-agent export agreement with Ruida company in September 1, 2004. The products processed by the company were also exported in the name of Rita. The company issued the VAT invoice to the company in the name of the seller. The fact is also inconsistent with the fact that the original and second instance court found that there was a contract relationship between the company and the company. 。 In the retrial of this court, the original court of second instance amended the legal relationship and the cognizance of relevant facts in accordance with the law. Two, the first paragraph of the 106th article of the general principles of civil law of the people's Republic of China stipulates: "a citizen or a legal person who violates the contract or fails to perform other obligations shall bear civil liability." The related behaviors of the parties in the case and Yin Yingbiao reflect the non-standard practices in the practice of export agency trade, and obscure the civil status of middlemen and export agents, implying commercial risks and legal risks. On the premise that the original court of second instance is cognizant of the relevant legal relationship and facts, according to the facts identified in the retrial, the company should still be the defendant in the case and bear corresponding civil liability for its related actions in the case related transaction: 1.. For reasons, the company can not make a reasonable explanation. 2. there is no direct sale and purchase relationship between Ruida company and the company. It still accepts the value-added tax invoices issued by the company in the name of the buyer, and has obtained the corresponding deductible interest and has obvious irregularities. Ruida benefits from its irregularities, but is unwilling to accept the corresponding civil consequences. Its actions do not conform to the principle of good faith. 3. specifically determine the scope of the corresponding civil liability undertaken by the company. We should consider the contents of the company's request, the nature and extent of the violations of the company, and the factors leading to the dispute. Ruida company accepts the VAT invoice issued by Huang Qiuhua according to the requirements of the company, and goes through the certification and deduction procedures. The processed products are also exported under the name of Rita. There is a common interest relationship between Ruida company and Yin Yingbiao. The two party's behavior is obviously related and has the characteristics of co operation, and its civil liability is also associated. Yin Yingbiao and Rita should pay the price of the case and the corresponding interest loss to the company. Since Yin Yingbiao did not take part in the case as a party, the company would be able to settle the dispute over the civil rights and interests between the company and Yin Yingbiao due to the relevant obligations of the company. In summary, the original and second instance decisions have flaws in determining facts, applying laws and explaining reasons, but the result of the referee is not improper. In accordance with the provisions of article thirty-seventh, Article 1, item 1 (1), article 186th of the PRC Civil Procedure Law, and Interpretation No. 14 of the Supreme People's Court [2008] No. 14, concerning the application of the interpretation of certain issues concerning the trial supervision procedure of the people's Republic of China's civil procedure law, the decision was made by the judicial committee of the court, and the decision was as follows: 153rd

Maintain the Shaoxing intermediate people's Court (2008) Shaoxing two people's final 217th civil judgment. {page_break}

[comment]

This case is a typical dispute arising out of the export agency trade, involving the three party trading entities of producers, middlemen and agent exporters. The dispute focuses on how to determine the legal relationship between the three parties and the legal responsibility.

First, correctly identify the legal relationship between producers, middlemen and exporters in the export agency transaction.

At present, the general operation procedures of foreign trade export agents are: by the foreign businessmen who order the domestic enterprises (producers) through the enterprises or individuals (middlemen) who do not enjoy the right of foreign trade management, or make the order from the middlemen to the manufacturers, make the goods name, quantity, amount, quality, delivery date and so on, and entrust them with the way of agent export. The foreign trade agency (agent exporter) has the right to operate foreign trade. As far as legal relationship is concerned, there is a sales contract or processing contract relationship between producers and middlemen, and there is a principal-agent export contract relationship between middlemen and agent exporters. This case is also true. As jasper did not register for industrial and commercial registration, Yin Yingbiao had a contract relationship between middleman and Ya Shilin, and there was a principal-agent export contract relationship between the client and the company. However, according to the facts identified and identified, one of the controversies in this case is whether the fact that the company's direct payment to the company and certification and the deduction of the value-added tax invoice have changed the contractual relationship.

The reason why Ruida company paid directly to the company is to accept the VAT invoice issued by the company, and to go through the certification and deduction procedures, which is mainly related to the irregular operation of the export agency practice. The second provision of "special provisions for VAT invoices" stipulates that "special invoices are invoices issued by general taxpayers of value-added tax (hereinafter referred to as general taxpayers) for sale of goods or provided with taxable services, which are vouchers for the purchaser to pay the value added tax and deduct the VAT input amount according to the relevant provisions of the VAT." It can be seen that in the sales transaction involving goods, the issuing party and the receiving party of the VAT invoices are the sellers and buyers of the transaction respectively. However, many middlemen like Yin Yingbiao have not registered entities with operational qualifications, they can not directly handle export business, nor can they apply for export tax rebates. At the same time, the State Administration of Taxation also requires that the tax refund for the export business should be completed in the production plant, and foreign trade companies are not allowed to declare the tax rebate directly. Driven by the interests of producers, middlemen and foreign trade companies in avoiding tax regulation, the value added tax invoices are gradually produced by domestic producers directly to foreign trade companies, so as to achieve the purpose of direct declaration of tax rebates by foreign trade companies. Three. This case is typical of this non-standard operation. The cost of processing should be paid by Yin Yingbiao to the company. The company issued the corresponding VAT invoice to Yin Yingbiao. In order to get the tax rebate benefit, the export agent reda paid directly to the company and obtained the certification and deduction after obtaining the VAT invoice issued by the company. In the trial practice, although the VAT invoice is often an important evidence for the existence of the transaction relationship between the parties, the people's court can not simply identify the object of the VAT invoice as the party to the contract, but it should still be based on the fact of signing the contract between the transaction subjects. In this case, the direct payment of the company to the company and the invoice issued by the company to reda company is not based on the real contractual relationship between the two sides, but rather the non-standard practices in the export trade. Combined with the whole case related circumstances, it is not possible to identify the legal consequences of contractual relationship changes and rights and obligations inheritance.

Two, determine the civil liability of middlemen and export agents in accordance with the related behaviors in specific litigation transactions.

The irregular behavior of Yin Yingbiao and Rita in the export agency trade, which obscures the civil status of middlemen and export agents, not only implies enormous commercial risks, but also affects civil liability in the legal consequences. Although there is no direct processing contract between the company and the company, it should bear civil liability for its related actions in the case related transaction.

1. combined with the whole case, Ruida and Yin Yingbiao share the same behavioral characteristics. Ruida denied the legal relationship with the company, but still paid some money to Yin Yingbiao for its account. After that, Yin Yingbiao's wife Huang Qiuhua instructed the company to issue VAT invoices directly to the company, and the processed products were eventually exported in the name of Rita. All these reflect the inseparable interest relationship between Ruida company and Yin Yingbiao. Their behaviors are obviously related and have the characteristics of common management. They should bear joint civil liability.

2., the joint liability of both the company and Yin Yingbiao is consistent with the principle of rights and obligations and the balance of interests. The reciprocal unification of rights and obligations is the concrete embodiment of the principle of honesty and credit and the principle of fairness in civil legal relations. Based on the non existence of the relationship of sale and purchase, the company accepts the VAT invoice issued by the company in the name of the buyer, and receives the corresponding deductible interest, and it should bear the corresponding civil consequences. In the practice of foreign trade, foreign trade companies and intermediaries control information superiority and shipping channels, and producers are generally in a weak position. As a mechanism of balance of interests, the judiciary should fully protect the legitimate rights and interests of creditors from the perspective of balancing the interests of both sides.

3., "a party must not benefit from any violation" is one of the principles that the court should follow to influence social orientation through judicial adjudication. The dispute reflects the prevailing non-standard operation in the practice of export agent trade. If the company benefits from irregularities, if it is exempt from it, it will be different from the court's actions to support the middleman's tax evasion and the export agent's failure to obtain VAT invoices. Therefore, the judgment was made by Yin Yingbiao and Rita to pay the price of the case and the corresponding interest loss to the company, which reflected the obstruction and restriction of the judiciary on the violation of the foreign trade export behavior.

Three, the original effective judge has flaws in identifying facts, applying laws and explaining reasons, but if the result is correct, it should maintain the original effective judgment after rectify the defects of the original effective judgment in the retrial judgment document.

The thirty-seventh interpretation of the Supreme People's court's interpretation of certain issues concerning the application of the procedure for adjudication supervision in the Civil Procedure Law of the people's Republic of China (Law No. 2008] No. thirty-seventh): Although the original judgment or ruling has flaws in determining facts, applying laws and explaining reasons, the people's court shall maintain the above defects after retrial judgments and rulings. This provision of judicial interpretation is an important adjustment to the original retrial way, which is conducive to giving play to the advantages of the court at the lower and lower levels, and reflects the judicial procedure guidance to avoid repeated procedures and the litigants' fatigue.

The court of first instance and second instance upheld the request of the company to request the company to pay a total of RMB 574444.92 yuan for processing fees, fabric and so on, and decided that it was not inappropriate for the company to compensate the loss of interest from the date of its prosecution. However, there are flaws in the fact finding and the application of relevant laws and reasons for the existence of processing contract relationship between Ruida company and the company.