Kuchifuku Foods Company v. Industrial Bank of Korea and Nuclear Power Plant Sub-branch of the Bank of China

口福食品公司诉韩国企业银行、中行核电站支行信用证纠纷案

Kuchifuku Foods Company v. Industrial Bank of Korea and Nuclear Power Plant Sub-branch of the Bank of China

(Case on the Dispute over Letter of Credit)

Plaintiff: Lianyungang Kuchifuku Foods Co., Ltd., located at Lianyun District, Lianyungang City, Jiangsu Province.

Legal Representative: Weng Jun, board chairman of the company.

Defendant: Industrial Bank of Korea (Head Office Soul), resided at Chung-Ku, Seoul, Korea

Legal Representative: Kim Jong Chang, board chairman of the bank

Defendant: Lianyungang Nuclear Power Plant Sub-branch of Bank of China, located at Lianyun District, Lianyungang City, Jiangsu Province.

Chief: Lou Peiyun, chief of the sub-branch.

The plaintiff Lianyungang Kuchifuku Foods Co., Ltd. (Hereinafter referred to as Kuchifuku Foods Company) brought a lawsuit to the Intermediate People's Court of Nanjing City, Jiangsu Province against the defendant, Industrial Bank of Korea (Head Office Soul) (hereinafter referred to as Industrial Bank of Korea) and the defendant, Lianyungang Nuclear Power Plant Sub-branch of the Bank of China (hereinafter referred to as Nuclear Power Plant Sub-branch of BOC) over the dispute of letter of credit.

The plaintiff Kuchifuku Foods Company alleged that: as the beneficiary of an irrevocable letter of credit issued by the defendant, Industrial Bank of Korea, the plaintiff had shipped the cargos in time in accordance with the requirements of the letter of credit and submitted a full set of the documents under the letter of credit to the defendant, Nuclear Power Plant Sub-branch of BOC. Upon examination, Nuclear Power Plant Sub-branch of BOC confirmed the compliance between documents and terms of a credit, and the conformity of documents; and sent the full set of documents to Industrial Bank of Korea, who refused to pay without any reason. Industrial Bank of Korea's refusal of payment violated the provisions of the Uniform Customs and Practice for Documentary Credits (International Chamber of Commerce, publication No.500, hereinafter referred to as UCP500), thus the plaintiff pleaded the court to adjudicate that Industrial Bank of Korea should undertake the obligations of a issuing bank, pay to the plaintiff the price for goods, which is USD110,500 under the letter of credit and the corresponding interests, and bear the legal cost of the case. As the negotiating bank, Nuclear Power Plant Sub-branch of BOC shall undertake joint and several liabilities.

　　The evidences submitted by the plaintiff were as follows:

1. An irrevocable letter of credit No. M04E5204NS00484 and the Chinese version, which prove the existence of legal relationship of letter of credit between the parties concerned;

2. A full set of documents and the Chinese versions under the above-mentioned letter of credit, which prove that Kuchifuku Foods Company had submitted a full set of documents as required;

3. Letter of dishonor and the Chinese version, which prove that the payment for goods under the letter of credit had been refused by Industrial Bank of Korea;

4. Lawyer's letter, which proves that Kuchifuku Foods Company could not accept the dishonor reasons provided by Industrial Bank of Korea;

5. 3 reply letters to the letter of dishonor and the Chinese versions, which prove that Nuclear Power Plant Sub-branch of BOC also held that the dishonor reasons provided by Industrial Bank of Korea could not be established;

6. Documentary bill and remitting covering letter, which prove that Nuclear Power Plant Sub-branch of BOC had asked, in the name of negotiating bank, the issuing bank - Industrial Bank of Korea - to repay the amount under the letter of credit;

7. Documentary bill of exchange and the Chinese version, which prove that Nuclear Power Plant Sub-branch of BOC had endorsed the bill of exchange and sent it to the issuing bank, thus had exercised the right of bill in the name of negotiating bank;

8. Receipts of verification fee and postage, which prove that Nuclear Power Plant Sub-branch of BOC had examined the full set of documents submitted by Kuchifuku Foods Company and collected the verification fee thereof;

9. The charging rates of the international settlement business of Bank of China, which prove that Nuclear Power Plant Sub-branch of BOC collected fees according to the standards of the negotiating bank and thus shall undertake the responsibilities of the negotiating bank.

The defendant Nuclear Power Plant Sub-branch of BOC argued that it did nothing more than mailing the documents submitted by the plaintiff, which means that it acted as a remitting bank instead of a negotiating bank. The plaintiff had no factual basis and legal basis to require it to undertake joint and several liabilities on the ground that it had acted as a negotiating bank.

The defendant Industrial Bank of Korea did not submit any evidence within the time limit set by the court for the presenting of evidence and was not present in court in the first instance, it claimed in the bill of defense submitted after the court hearing that: as there was not any law on the letter of credit in China, it has to make the defense in accordance with the provisions of UCP500. There were discrepancies in the documents under the letter of credit submitted by the plaintiff; there existed such fraudulent acts as antedated bill of lading and forged bills, etc, thus according to the international practice of treating fraud as an exception, it was entitled to refuse to pay the price of the goods under the letter of credit.

　　The Industrial Bank of Korea submitted following evidences and pleaded the court to conduct cross-examination:

1. An irrevocable letter of credit No. M04E5204NS00484 and a full set of documents and bills of exchange under the letter of credit, which prove that the remitting bank appearing on the bill of exchange filled in by Kuchifuku Foods Company was “INDUSTRIAL BANK OF KOREA SEOUL（HEAD OFFICE SEOUL）”, which was inconsistent with the remitting bank of “INDUSTRIAL BANK OF　KOREA （HEAD OFFICE SEOUL） SEOUL” in the letter of credit; the descriptions of the name of goods on the documents were inconsistent with each other; there was a unit of weight on the packing list, which did not exist on the invoice;

2. A photocopy of the duplicate of the bill of lading issued by COSCO Container Line, Ltd. (hereinafter referred to as COSCO), which proves that the actual date of shipment of the cargos involved in the case was June 1st, 2002, while on the bill of lading under the letter of credit submitted by Kuchifuku Foods Company, the date of shipment was May 31st, 2002;

3. Kuchifuku Foods Company's materials for registration with the industrial and commerce bureau, which prove that the correct English name of Kuchifuku Foods Company should be “LIANYUNGANG KUCHIFUKU FOODS　CO., LTD.” rather than “LIANYUNGAND　KUCHIFUKU FOODS CO.LTD” as appearing on the negotiating bill under the letter of credit submitted by Kuchifuku Foods Company;

4. The sales contract under the letter of credit, which proves that the seal of Kuchifuku Foods Company was different from that on the negotiating bill submitted by the company;

5. The documents under another letter of credit with Kuchifuku Foods Company as the beneficiary, which prove that the name and seal previously used by Kuchifuku Foods Company were different from those under the letter of credit of the present case, thus the documents and seal under the letter of credit of the present case were forged by Kuchifuku Foods Company.

Both Kuchifuku Foods Company and Nuclear Power Plant Sub-branch of BOC had argued that, as Industrial Bank of Korea submitted the bill of defense and evidences after the expiration of the statutory period for defense and presenting proof, it shall be deemed as it had waived its right to defense and the right to produce evidence, thus the evidences submitted by Industrial Bank of Korea shall not be cross-examined. At the same time, Kuchifuku Foods Company made the following explanations: 1. in the letter of credit issued by Industrial Bank of Korea, the name of the remitting bank appeared for three times, twice of which was “INDUSTRIAL BANK OF KOREA SEOUL （HEAD OFFICE SEOUL）”, which was consistent with the name of the remitting bank on its bills of exchange, and the name “INDUSTRIAL BANK OF KOREA（HEAD OFFICE SEOUL）SEOUL” appeared only once. In addition, in the bill of defense produced by Industrial Bank of Korea, the name of the remitting bank was consistent with that in the bills of exchange it issued. Therefore, even if there was a mistake in the name of the remitting bank, it was made by Industrial Bank of Korea. 2. According to the Chinese law, the name of a Chinese enterprise shall be the name registered with the industry and commerce bureau, the foreign name was not its legal name, thus the present company did not violate the Chinese law by miswriting “G” as “D” in the foreign name of its own enterprise. 3. Industrial Bank of Korea attempted to prove the antedating of its bill of lading with the a photocopy of the duplicate of the bills of lading it submitted after the court hearing, but as the photocopy was inconsistent with the original bills of lading submitted to the court by both parties, and the source of the photocopy was unidentified, they were defective as a evidence in form, thus it could not prove the antedating of the bill of lading.

Upon trial, the Intermediate People's Court of Nanjing City verified the following facts that:

On April 24th, 2002, in response to the request of Changji Business Corporation, Seoul, Korea (hereinafter referred to as Changji Company), Industrial Bank of Korea issued an irrevocable documentary letter of credit No. M04E5204NS00484 for USD110,500, the date of expiration of which was June 30th, 2002. The English name of the beneficiary appearing on the letter of credit was LIANYUNGAND KUCHIFUKU FOODS CO.LTD, the negotiating bank was any bank, the terms of payment was payment at sight, and the payer was Industrial Bank of Korea. The latest date of shipment was May 31st, 2002, the documents required were signed commercial invoices in triplicate, a full set of clean bills of lading in original and a packing list in triplicate. The present letter of credit also stipulated such issues as the presentation of documents and the negotiating period, etc. After receiving the present letter of credit, Kuchifuku Foods Company submitted to Nuclear Power Plant Sub-branch of BOC the full set of documents under the letter of credit, among which, the date of shipment on the original bill of lading was May 31st, 2002. The Nuclear Power Plant Sub-branch of BOC checked the documents it received in a strict manner and sent them to the issuing bank through EMS on 7th of the same month. On June 19th, the same year, Nuclear Power Plant Sub-branch of BOC received two notices of dishonor from Industrial Bank of Korea with such dishonor grounds as follows: 1. The name of goods on the invoice, packing list and bill of lading was inconsistent with each other; 2. The date of shipment on the bill of lading was forged; 3. The name of the remitting bank on the bill of exchange was inconsistent with that on the letter of credit; 4. The consignee's address was not given. After receiving the notices of dishonor, Nuclear Power Plant Sub-branch of BOC sent a letter of reply to Industrial Bank of Korea on June 20th, which pointed out the nonexistence of the discrepancies the Bank mentioned and asked it to accept the full set of documents and make payment immediately. On June 26th, Industrial Bank of Korea send a letter to Nuclear Power Plant Sub-branch of BOC for a second time, it did not mention the discrepancies any more but claimed that: “The applicants told our bank that they have informed your bank about the fraud and admonished your bank not to accept the documents of the beneficiary. The applicants are bringing a suit against the beneficiary for fraud. hawse have evidences to prove that the documents are forged and the fraud is going on.” Hereafter, Nuclear Power Plant Sub-branch of BOC tried to negotiate with Industrial Bank of Korea on many occasions and asked it to perform its payment duty as an issuing bank, but got no reply from Industrial Bank of Korea. On September 3rd, Nuclear Power Plant Sub-branch of BOC received the returned documents and the duplicated documentation of the photocopy of the stop-payment order issued by Seoul Court, Korea from Industrial Bank of Korea. On September 9th, Nuclear Power Plant Sub-branch of BOC handed the returned documents to Kuchifuku Foods Company, who brought this lawsuit to this end.

The Intermediate People's Court of Nanjing City held that:

Paragraph 1 of Article 34 of the Some Provisions of the Supreme People's Court on Evidence in Civil Procedures stipulates that “The parties concerned shall submit evidential materials to the people's court within the time period for producing evidences; in case any party fails to submit evidences during this time period shall be deemed as waiving the right to produce evidences.” Paragraph 2 stipulates that “The evidence materials submitted by the parties concerned beyond the time period shall not be cross-examined during the court hearing of the people's court, unless both parties agree to cross-examine them.” Article 43 stipulates that “Where the evidences submitted by the parties concerned after the period for producing evidences expires are not new evidences, they shall not be accepted by the people's court.” “Where any evidence fails to be provided by the parties concerned during the extended period upon the approval of the people's court due to objective reasons and the failure to hear such evidence may result in injustice, such evidence may be deemed as new evidence.” Within the stipulated proof period, Industrial Bank of Korea did not submit any evidence or apply for extending the period for presenting evidences, and the evidences it submitted after the court hearing were not newly discovered evidences submitted after the expiration of the proof period or the evidences which were unable to be provided during the proof period. As the other parties concerned in the case refused to cross-examine them, the evidences submitted by Industrial Bank of Korea shall not be cross-examined.

Paragraph 3 of Article 142 of the General Principles of the Civil Law of the People's Republic of China stipulates that “International practice may be applied to matters for which neither the law of the People's Republic of China nor any international treaty concluded or acceded to by the People's Republic of China has any provisions.” As the defendant of the present case, Industrial Bank of Korea, was a foreign legal person and the cause of the present case was the dispute over foreign-related letter of credit, all parties concerned took UCP500 as the basis. As there is not any law or regulation governing the letter of credit relationship at present in China, and UCP is the international practice governing such relationship, it shall be applicable in the present case.

Item I, Paragraph a of Article 9 of UCP500 stipulates that, as for an irrevocable letter of credit that provides for sight payment - to pay at sight, the credit constitutes a definite undertaking of sight payment of the issuing bank, as long as the stipulated documents are presented to the nominated bank or to the issuing bank and comply with the terms and conditions of the credit. As the issuing bank, the letter of credit issued by Industrial Bank of Korea was irrevocable letter of credit of sight payment. As long as Kuchifuku Foods Company, in accordance with the letter of credit, submitted the documents to Nuclear Power Plant Sub-branch of BOC, who then forwarded to Industrial Bank of Korea, Industrial Bank of Korea shall fulfill its obligations of an issuing bank and pay Kuchifuku Foods Company the price under the letter of credit. Paragraph b of Article 14 stipulates that “Upon receipt of the documents, the issuing bank and/or confirming bank, if any, or a nominated bank acting on their behalf, must determine on the basis of the documents alone whether or not they appear on their face to be in compliance with the terms and conditions of the Credit. If the documents appear on their face not to be in compliance with the terms and conditions of the Credit, such banks may refuse to take up the documents.” Item I of Paragraph d stipulated that “If the Issuing Bank and/or Confirming Bank, if any, or a Nominated Bank acting on their behalf, decides to refuse the documents, it must give notice to that effect by telecommunication or, if that is not possible, by other expeditious means, without delay but no later than the close of the seventh banking day following the day of receipt of the documents. Such notice shall be given to the bank from which it received the documents, or to the Beneficiary, if it received the documents directly from him.” After receiving the documents forwarded by Nuclear Power Plant Sub-branch of BOC, Industrial Bank of Korea declared the nonconformity between documents and terms of credit, but after being replied by Nuclear Power Plant Sub-branch of BOC that the nonconformity could not hold water, it did not insist in the nonconformity any more within the effective notice period as stipulated by UCP500, which meant its waiver of the right of refusing to accept the documents with the excuse of nonconformity between documents and terms of credit. Industrial Bank of Korea sent back the documents finally under the pretext of letter of credit fraud and the stop-payment order issued by Seoul Court, Korea. After Kuchifuku Foods Company brought a suit, Industrial Bank of Korea's defence under the pretext pf discrepancies in the documents was not in compliance with the facts and the provisions of UCP500. Paragraph a of Article 3 of UCP500 stipulates that “Credits, by their nature, are separate transactions from the sales or other contract(s) on which they may be based and banks are in no way concerned with or bound by such contract(s), even if any reference whatsoever to such contract(s) is included in the Credit. Consequently, the undertaking of a bank to pay, accept and pay Draft(s) or negotiate and/or to fulfill any other obligation under the Credit, is not subject to claims or defenses by the Applicant resulting from his relationships with the Issuing Bank or the Beneficiary.” The letter of credit relationship is independent from the underlying contract and is not subject to claims or defenses resulting from the underlying contract relationship, although fraud is exceptional. Industrial Bank of Korea did not submit any evidence which was enough to prove the existence of fraud within the proof period, thus the present defense was not tenable. Given this situation, Kuchifuku Foods Company's claim that Industrial Bank of Korea shall pay the price under the letter of credit and the corresponding interests shall be supported.

Kuchifuku Foods Company and Nuclear Power Plant Sub-branch of BOC did not conclude any written contract about negotiation; there existed no contractual relationship about negotiation between the two parties, thus Nuclear Power Plant Sub-branch of BOC bear no contractual obligation of negotiating documents. ItemⅡ, Paragraph b of Article 10 of UCP500 stipulates that “Negotiation means the giving of value for Draft(s) and/or document(s) by the bank authorized to negotiate. Mere examination of the documents without giving of value does not constitute a negotiation.” Paragraph c stipulates that “Unless the Nominated Bank is the Confirming Bank, nomination by the Issuing Bank does not constitute any undertaking by the Nominated Bank to pay, to incur a deferred payment undertaking, to accept Draft(s), or to negotiate. Except where expressly agreed to by the Nominated Bank and so communicated to the Beneficiary, the Nominated Bank's receipt of and/or examination and/or forwarding of the documents does not make that bank liable to pay, to incur a deferred payment undertaking, to accept Draft(s), or to negotiate.” Nuclear Power Plant Sub-branch of BOC was not the confirming bank of the letter of credit in the present case. Although the negotiation bank of the present letter of credit was any bank, Nuclear Power Plant Sub-branch of BOC did not expressly agree to negotiate or pay the consideration after receiving the letter of credit and all documents thereunder submitted by Kuchifuku Foods Company, it did nothing more than examining and sending the documents, thus the sub-branch was a remitting bank instead of a negotiating bank as stipulated by UCP500, and it shall not undertake the legal obligation of negotiation. Kuchifuku Foods Company's claim that Nuclear Power Plant Sub-branch of BOC shall bear joint and several liabilities for compensation as it was negotiating bank lacks factual and legal basis and shall not be established.

Therefore, the Intermediate People's Court of Nanjing City adjudicated on December 30th, 2002 that:

1. Industrial Bank of Korea shall pay Kuchifuku Foods Company the amount of USD 110,500 under the letter of credit and the corresponding interests within 10 days upon the effectiveness of this judgment;

2. Kuchifuku Foods Company's claim against Nuclear Power Plant Sub-branch of BOC shall be rejected.

The court acceptance fee of 14,137 shall be borne by Industrial Bank of Korea.

Industrial Bank of Korea was dissatisfied and appealed to the Superior People's Court of Jiangsu Province. The grounds were as follows: 1, The beneficiary of the letter of credit of the present case was LIANYUNGAND KUCHIFUKU FOODS CO.LTD, while the English name of the appellee Kuchifuku Foods Company was LIANYUNGANG KUCHIFUKU FOODS CO.LTD, so Kuchifuku Foods Company was not the beneficiary of the letter of credit of the present case. The subject was falsely verified in the judgment of the first instance. 2. There are solid evidences to prove that Kuchifuku Foods Company forged the documents and illicitly engraved the official seal, antedated the date of shipment on the bill of lading to cheat the parties under the letter of credit. 3. The real motive of Kuchifuku Foods Company's fraud was to cheat the appellant and to negotiate the payment under the letter of credit with forged documents as the quality of the goods it supplied was inferior. In conclusion, Kuchifuku Foods Company firstly breached the trade contract, then forged documents to cheat the appellant for the purpose of negotiating the letter of credit; and brought substantial damages to the accountee because of the delay of cargos. According to the international practice of exception of letter of credit fraud, the appellant was entitled to dishonor the payment under the letter of credit. Thus the appellant pledged the court to revise the original judgment and reject the claims of Kuchifuku Foods Company.

The evidences submitted by Industrial Bank of Korea to the court of the second instance were as follows:

1. Kuchifuku Foods Company Bylaws, which proves that the English name registered by Kuchifuku Foods Company with the administrative department for industry and commerce was “LIANYUNGANG KUCHIFUKU FOODS CO.LTD” instead of “LIANYUNGAND KUCHIFUKU FOODS CO.LTD” on the negotiating bill of the letter of credit;

2. The negotiating bills given by Kuchifuku Foods Company to Korea HANVIT Bank in other transactions, which prove that Kuchifuku Foods Company had record of fraudulent act and used the name and seal that were different from those used in this negotiation;

3. The full set of documents under the letter of credit in the present case and the Chinese versions, which prove that the English name used by Kuchifuku Foods Company when demanding the payment was inconsistent with the correct English name;

4. The copies of the sailing schedule of May and June issued by Qingdao Haifa Industrial Company, one copy for each month, which prove that the sailing date of the cargo ship “Lingquanhe” involved in the present case was June 1st, the date filled in the bill of lading by Kuchifuku Foods Company has been antedated.

Except submitting the above–mentioned evidences, Industrial Bank of Korea applied, with the reason that it could not obtain the duplicate of the bill of lading whose date of shipment was June 1st, 2002 because of objective reasons, the court of the second instance for closing down the logbook of May through June, 2002 of the cargo ship “Lingquanhe”, which belonged to COSCO, for the purpose of verifying the actual date of shipment of the cargos under the bill of lading involved in the present case.

Kuchifuku Foods Company defended that: 1. The evidences Nos. 1 - 3 submitted by the appellant Industrial Bank of Korea in the second instance were consistent with the evidences it submitted to the court of the first instance after the court hearing, thus were overdue evidences and shall not be taken as a basis for ruling; 2. All negotiating documents presented to Industrial Bank of Korea by Kuchifuku Foods Company were in compliance with the provisions of UCP500, there was not any fraud involved, Industrial Bank of Korea shall bear the obligation of unconditional payment; 3. Kuchifuku Foods Company made the shipment within the period stipulated in the letter of credit, there existed no antedated bill of lading conduct at all. Industrial Bank of Korea shall provide sufficient evidences if it believed that the seller was using the contract to cheat; 4. Industrial Bank of Korea's behavior of refusing to pay the letter of credit under the pretext of inconsistency did not comply with the international payment practice. Its real cause for dishonor was that the importer was incapable of paying for the. The appealing grounds of Industrial Bank of Korea were not tenable, the second instance shall maintain the original judgment.

Nuclear Power Plant Sub-branch of BOC acknowledged that the judgment of the first trial was correct and should be affirmed.

Upon the application of Industrial Bank of Korea, and given the actual situation of the present case, the Superior People's Court of Jiangsu Province obtained following evidences according to its power and functions:

1. A letter sent by COSCO to Qingdao COSCO International Freight Co., Ltd. (COSCO's port company in Qingdao), the main content of which is: COSCO asked Qingdao COSCO International Freight Co., Ltd. to finish the shipment before the latest date for shipment, namely May 31st, 2002, as set by Kuchifuku Foods Company and issued on board the bill of lading of May 31st to Kuchifuku Foods Company;

2. The shipping order of the cargos involved in the present case obtained from China Ocean Shipping Tally Company Qingdao Branch, the main content of which is: Kuchifuku Foods Company had delivered the cargos to the dock appointed by Qingdao COSCO International Freight Co., Ltd. on May 31st, which were released by the customs on May 31st,too;

3. The worksheet of the cargos involved in the present case obtained from China Ocean Shipping Tally Company Qingdao Branch, the main content of which is: the time when the cargos were loaded on “Lingquanhe” was from 8:00 of May 31st, 2002 to 4:00 of June 1st;

4. The printed documentation of the duplicate bill of lading obtained from Qingdao COSCO International Freight Co., Ltd., which proves that the bill of lading was issued on June 1st, 2002;

5. The investigative record of Sinatrans Shandong Company Limited, Jin'an Branch, the main content of which is: being entrusted by Kuchifuku Foods Company, this company, in as the process of space booking, customs declaration and shipment receive at dock, etc, firstly contacted Pan Ocean Shipping Co., Ltd. to consign the cargos involved in the present case but was refused, then contacted COSCO, who promised to load the cargos before 24:00 of May 31st;

6. The investigative record of Qingdao COSCO International Freight Co., Ltd., the main content of which is: being instructed by Mr. Jiang Yunlong from COSCO Container Lines Co., Ltd., this company started to load the cargos involved in the present case on May 31st, as some cargos were loaded at the latter half of the night, the bill of lading was issued on June 1st.

All parties concerned acknowledged the above-mentioned evidences obtained by the court.

Upon trial, the Superior People's Court of Jiangsu Province ascertained the following facts except for confirming the facts verified in the first instance:

The appellee Kuchifuku Foods Company organized the cargos under the letter of credit after receiving the letter of credit issued by Industrial Bank of Korea, and contacted Pan Ocean Shipping Co., Ltd. for shipment but was refused. Then Kuchifuku Foods Company contacted COSCO, who promised to load the cargos before the latest date for shipment as stipulated in the letter of credit. From 8:00 of May 31st to 4:00 of June 1st, 2002, the cargos under the letter of credit of the present case were loaded on “Lingquanhe”; on June 1st, “Lingquanhe” set sail; on the same day, the carrier issued the bill of lading of the cargos, but the date of shipment filled by the carrier on the bill of lading produced to Kuchifuku Foods Company was May 31st, 2002.

In the letter of credit issued by the appellant Industrial Bank of Korea, the English name of the beneficiary Kuchifuku Foods Company was filled as “LIANYUNGAND KUCHIFUKU FOODS CO.LTD”.To make the name on the negotiating document consistent with that on the letter of credit, the appellee Kuchifuku Foods Company changed “LIANYUNGANG” to “LIANYUNGAND” and affixed a seal that contained such English characters as “LIANYUNGAND KUCHIFUKU FOODS CO.LTD” on the negotiating document of the letter of credit.

Moreover, Industrial Bank of Korea claimed that the quality of the cargos provided by Kuchifuku Foods Company was inferior, and that substantial damages were brought to the accountee because of the delay of the cargos, but it did not submit corresponding evidences. As for the antedating of bill of lading, at the court hearing of the second instance, Industrial Bank of Korea did not submit any evidence to prove that the carrier was instigated by, or maliciously collaborated with, Kuchifuku Foods Company. At the court hearing of the second instance, Industrial Bank of Korea gave up the appealing ground No. 1, which meant that it did not hold that Kuchifuku Foods Company was not the beneficiary of the letter of credit of the present case any more.

The problems supposed to be solved in the second instance were as follows: 1. The application of law; 2. Whether or not there existed fraud with the forged documents; 3. Whether or not there existed fraud by antedating the bill of lading.

The Superior People's Court of Jiangsu Province held that:

In respect to question No.1. The present case was a dispute over letter of credit. In the first instance, all parties concerned took UCP500 as the suing and defending basis and the judgment in the first instance was given according to UCP500. While as UCP500 could only define the status and rights and obligations of the parties concerned in the letter of credit business, it did not provide for the letter of credit fraud or remedies, so it could not solve the problem of letter of credit fraud presented by Industrial Bank of Korea. As for this problem, Industrial Bank of Korea held that Korean law should be the applicable law, while both Kuchifuku Foods Company and the defendant in the original trial Nuclear Power Plant Sub-branch of BOC held that Chinese law should apply. Letter of credit fraud was a tortious act. Paragraph 1 of Article 146 of the General Principles of the Civil Law of the People's Republic of China stipulates that “The law of the place where an tortious act is committed shall apply in handling compensation claims for any damage caused by the act.” Since Industrial Bank of Korea claimed that Kuchifuku Foods Company forged the documents and antedated the bill of lading, both the documents and bill of lading under the letter of credit in the present case were issued in China, and China was the place where the infringing act was committed, Chinese law shall apply in handling the letter of credit fraud and the remedies.

In respect to question No.2. Letter of credit fraud refers to an act whereby the beneficiary of the letter of credit, when no cargo is available or the quality of the cargo is too inferior to deliver, forges one or more types of documents that satisfy the requirements of the letter of credit alone or by maliciously collaborating with other people, and obtains the payment under the letter of credit from the issuing bank by fraud, thus brings economic loss to the accountee. While in the present case, the appellee, Kuchifuku Foods Company, after delivering the cargos to the carrier, produced or obtained such documents as commercial invoice, bill of exchange, packing list and bill of lading, etc, as required by the letter of credit, the appellant, Industrial Bank of Korea, had no evidence to prove that the quality of the cargos supplied by Kuchifuku Foods Company was inferior, thus there existed no such problem as Kuchifuku Foods Company defrauded the payment under the letter of credit with bad quality cargos. Whereas Industrial Bank of Korea miswrote the English name of the beneficiary Kuchifuku Foods Company as “LIANYUNGAND KUCHIFUKU FOODS CO.LTD”in the letter of credit it issued, Kuchifuku Foods Company filled the wrong name in the negotiating document of the letter of credit and affixed the seal which contains the same English name to make it consistent with that on the letter of credit. Although the seal affixed by Kuchifuku Foods Company on the negotiating document of the letter of credit contained the wrong English name, there was also correct English name thereon. At the court hearing of the second instance, Industrial Bank of Korea had no different opinion on the fact that Kuchifuku Foods Company was the beneficiary of the letter of credit, which indicated that the word “LIANYUNGAND” Kuchifuku Foods Company used on the negotiating document of the letter of credit did not cause ambiguity objectively. Therefore, there was good reason for Kuchifuku Foods Company to miswrite the English name of the company on the negotiating document of the letter of credit and to affix the seal with the same wrong English name, it was not a letter of credit fraud. Industrial Bank of Korea's grounds that Kuchifuku Foods Company illicitly engraved common seal, forged documents and constituted letter of credit fraud shall not be tenable.

As for question No.3. The current evidences prove that the cargos involved in the present case were loaded between 8:00 of May 31st to 4:00 of June 1st, 2002, the carrier issued the bill of lading on June 1st, while the date of shipment in the bill of lading produced by the carrier to Kuchifuku Foods Company was May 31st, 2002, it was actually an antedated bill of lading. Even so, it could not be determined that Kuchifuku Foods Company conducted a letter of credit fraud. The reasons were as follows: 1. Before the date of shipment stipulated in the letter of credit, Kuchifuku Foods Company had organized the cargos, delivered them to the dock appointed by the carrier, gone through such necessary procedures as the release of cargos and had got the carrier's promise of loading on May 31st, so there was no objective need for it to antedate the bill of lading; 2. Industrial Bank of Korea could not provide evidences to prove that Kuchifuku Foods Company had participated in antedating the bill of lading and had subjective purpose to conduct such behavior. The antedating of bill of lading was a fraudulent act committed by the carrier for the purpose of fulfilling its promise to Kuchifuku Foods Company and had nothing to do with Kuchifuku Foods Company. 3. Industrial Bank of Korea claimed that the antedated bill of lading led to the delay of the arrival of cargos, which brought substantial damages to the accountee, for which, unfortunately, it did not submit corresponding evidences. For the accountee, the antedated bill of lading in the present case did not cause actual damages. Therefore, though there existed the fact of antedating the bill of lading in the present case, there did not exist subjective malevolence that the beneficiary of the letter of credit intended to cheat with this. As for the antedating of the bill of lading, Kuchifuku Foods Company had no fault, thus it shall not be determined as letter of credit fraud and Industrial Bank of Korea shall not take it as an excuse to dishonor the payment for goods under the letter of credit.

Paragraph 2 of Article 106 of the General Principles of the Civil Law of the People's Republic of China stipulates that “Citizens and legal persons who encroach by fault upon any state or collective property, or the property or body of other people shall bear civil liabilities.” In conclusion, the appellant Industrial Bank of Korea's grounds that Kuchifuku Foods Company forged documents, antedated the bill of lading and supplied poor quality goods that it should be governed by the exception principle of letter of credit fraud so as to exempt it from the payment responsibility, shall not be established. As for the inconsistency between the English name of the beneficiary on the negotiating document and that on the letter of credit as well as the antedated bill of lading, Kuchifuku Foods Company had no subjective fault to cheat, thus shall not bear the civil responsibility for letter of credit fraud. The judgment made in the first instance that Industrial Bank of Korea shall undertake the payment obligation under the letter of credit was not inappropriate, thus shall be maintained. Therefore, the Superior People's Court of Jiangsu Province adjudicated in accordance with Item (1), Paragraph 1 of Article 153 of the Civil Procedure Law of the People's Republic of China on December 23rd, 2003 that:

The appeal shall be rejected, and the judgment of the first instance shall be sustained.

The 14,137 Yuan of case acceptance fee in the second instance shall be borne by Industrial Bank of Korea.

口福食品公司诉韩国企业银行、中行核电站支行信用证纠纷案

【裁判摘要】
　　信用证欺诈，是指信用证受益人在根本无货或者质量低劣无法交货的情况下，单独或与他人恶意串通，伪造符合信用证要求的一种或几种单据，从开证行骗取信用证项下货款，从而使开证申请人遭受经济损失的行为。开证行如无证据证明信用证项下单据是受益人单独或与他人恶意串通伪造的，目的是从开证行骗取信用证项下款项，且该伪造行为已经给开证申请人造成了实质性损害，不能援引信用证欺诈例外原则拒付信用证项下款项。
　　原告：连云港口福食品有限公司。
　　法定代表人：翁军，该公司董事长。
　　被告：韩国中小企业银行（汉城总行）。
　　法定代表人：金钟昶，该行董事长。
　　被告：中国银行连云港市核电站支行。
　　负责人：娄培云，该支行行长。
　　原告连云港口福食品有限公司（以下简称口福食品公司）因与被告韩国中小企业银行汉城总行（以下简称韩国企业银行）、中国银行连云港市核电站支行（以下简称中行核电站支行）发生信用证纠纷，向江苏省南京市中级人民法院提起诉讼。
　　原告口福食品公司诉称：作为被告韩国企业银行开出的一份不可撤销信用证的受益人，原告已经按信用证要求及时将货物装船，并向被告中行核电站支行提交了信用证项下全套单据。中行核电站支行经审查，确认单证一致、单单一致后，将全套单据寄给韩国企业银行，却遭韩国企业银行无理拒付。韩国企业银行的拒付行为，违反《跟单信用证统一惯例》（国际商会第500号出版物，以下简称UCP500 ）的规定，请求判令韩国企业银行承担开证行义务，给原告支付信用证项下货款110500美元及相应利息，并负担本案诉讼费用；作为议付行，中行核电站支行对此应承担连带责任。
　　原告口福食品公司提交以下证据：
　　1.号码为M04E5204NS00484的不可撤销信用证及中译本，用以证明各方当事人之间存在信用证法律关系；
　　2.上述信用证项下的全套单据及中译本，用以证明口福食品公司已按要求提交了全套单据；
　　3.拒付函及中译本，用以证明信用证项下货款已被韩国企业银行拒付；
　　4.律师函，用以证明口福食品公司不能接受韩国企业银行提出的拒付理由；
　　5.对拒付函的3份回函及中译本，用以证明中行核电站支行也认为韩国企业银行提出的拒付理由不成立；
　　6.跟单汇票寄单面函，用以证明中行核电站支行已经以议付行名义要求开证行韩国企业银行偿付信用证项下款项；
　　7．跟单汇票及中译本，用以证明中行核电站支行在汇票上背书并将其交给开证行，已以议付行名义行使了票据权利；
　　8.验单费、邮寄费收据，用以证明中行核电站支行已对口福食品公司提交的全套单据进行过审查，并因此收取了验单费；
　　9.中国银行国际结算业务收费标准，用以证明中行核电站支行是按议付行标准收取费用，因此应承担议付行责任。
　　被告中行核电站支行答辩称：在本案信用证关系中，本被告只是对原告提交的单据做过寄单处理，是寄单行而非议付行。原告以本被告是信用证议付行为由，要求本被告承担连带责任，没有事实根据与法律依据。
　　被告韩国企业银行在法院限定的举证期限内未提交证据，一审时也未到庭参加诉讼，其庭后提交的答辩状称：由于中国没有信用证法律，本被告根据UCP500的规定进行答辩。原告提交的信用证项下单据存在不符点；且还有倒签提单、伪造票据等欺诈行为，依照欺诈例外的国际惯例，本被告有权拒付信用证项下货款。
　　被告韩国企业银行提交以下证据，要求法院组织质证：
　　1.号码为M04E5204NS00484的不可撤销信用证和该信用证项下全套单据、汇票，用以证明口福食品公司在汇票上填写的汇款行是“INDUSTRIAL BANK OF KOREA SEOUL（HEAD OFFICE SEOUL）”，与信用证上汇款行“INDUSTRIAL BANK OF　KOREA （HEAD OFFICE SEOUL） SEOUL”的名称不一致；各单据对商品品名的描述不一致，装箱单中有重量单位而发票上却没有等不符点问题；
　　2.中远集装箱运输有限公司（以下简称中远公司）签发的提单副本复印件，用以证明涉案货物实际装船日期是2002年6月1日，而口福食品公司提交的信用证项下提单却将装船日期倒签为2002年5月31日；
　　3.口福食品公司的工商注册材料，用以证明口福食品公司正确的英文名称是“LIANYUNGANG KUCHIFUKU FOODS　CO.LTD”，而口福食品公司提交的信用证议付单据上却写成“LIANYUNGAND　KUCHIFUKU FOODS CO.LTD”；
　　4.信用证项下的买卖合同，用以证明口福食品公司的印章与其提交议付票据上使用的印章不一致；
　　5．以口福食品公司作为受益人的另一信用证项下单据，用以证明口福食品公司以前使用的名称和印章与本案信用证项下的名称和印章不同，因而本案信用证项下的票据及印章是口福食品公司伪造的。
　　原告口福食品公司和被告中行核电站支行均提出，由于被告韩国企业银行是在法定答辩和举证期已过后才提交答辩状与证据，应视为其放弃了答辩与举证权，故对其提交的证据不予质证。同时，口福食品公司还作如下说明：1.在韩国企业银行开具的信用证中，汇款行的名称共出现3处，其中两处使用“INDUSTRIAL BANK OF KOREA SEOUL （HEAD OFFICE SEOUL）”，与本公司汇票上的汇款行名称一致，只有1处使用“INDUSTRIAL BANK OF KOREA（HEAD OFFICE SEOUL）SEOUL”；另外，韩国企业银行在自己的答辩状中，也使用了与本公司开具汇票上一致的汇款行名称。因此，汇款行名称即使有误，也是由韩国企业银行造成的。2.按中国法律规定，中国企业名称以工商登记中的中文名称为准，外文名称不是法定名称，故本公司将自己企业外文名称中的“G”误写为“D”，并不违法。3.韩国企业银行企图以庭后提交的提单副本复印件来证明本公司倒签提单，但这个复印件与双方都向法庭提交过的正本提单内容不一致，且复印件来源不明，作为证据存在着形式上的缺陷，不能证明倒签问题。
　　南京市中级人民法院经审理查明：
　　2002年4月24日，应韩国汉城昌技企业有限公司（以下简称昌技公司）的申请，被告韩国企业银行开出一份号码为M04E5204NS00484的不可撤销跟单信用证，金额110500美元，有效日期至同年6月30日，信用证上注明的受益人英文名称为LIANYUNGAND KUCHIFUKU FOODS CO.LTD，议付行为任何银行，付款方式为见票即付，付款人韩国企业银行；最迟装船日期为2002年5月31日，所需单据为已签署的商业发票一式三份、全套正本清洁提单、装箱单一式三份。该信用证还约定了交单、议付单据期间等。原告口福食品公司收到该信用证后，于2002年6月6日向被告中行核电站支行提交了信用证项下的全套单据，其中正本提单载明的装船日期为2002年5月31日。中行核电站支行收到单据后进行了严格核对，并于当月7日通过快邮寄给开证行。同年6月19日，中行核电站支行收到韩国企业银行的两份拒付通知书，拒付理由为：1.发票、装箱单、提单上的商品品名不一致；2.提单上的装船日期是伪造的；3.汇票上注明的汇款行名称与信用证上的汇款行名称不一致；4.没有注明收货人地址。收到拒付通知后，中行核电站支行于6月20日给韩国企业银行回函，指出其提出的不符点不存在，并要求其接受全套单据并立即付款。6月26日，韩国企业银行第二次致函中行核电站支行，未再提出不符点问题，而是称：“申请人告知我行，他们曾通知贵行有关欺诈事宜，并警告贵行不要接受受益人的单据，目前申请人正就欺诈一事起诉受益人。我行有证据证明单据系伪造，而且欺诈正在进行。”此后，中行核电站支行虽多次与韩国企业银行交涉，要求其履行开证行的付款责任，但均未收到韩国企业银行的回复。9月3日，中行核电站支行收到韩国企业银行的退单及所附韩国汉城法院的止付令副本复印件。9月9日，中行核电站支行将退单交给口福食品公司，口福食品公司为此提起本案诉讼。
　　南京市中级人民法院认为：
　　最高人民法院《关于民事诉讼证据的若干规定》第三十四条第一款规定：“当事人应当在举证期限内向人民法院提交证据材料，当事人在举证期限内不提交的，视为放弃举证权利。”第二款规定：“对于当事人逾期提交的证据材料，人民法院审理时不组织质证。但对方当事人同意质证的除外。”第四十三条规定：“当事人举证期限届满后提供的证据不是新的证据的，人民法院不予采纳。”“当事人经人民法院准许延期举证，但因客观原因未能在准许的期限内提供，且不审理该证据可能导致裁判明显不公的，其提供的证据可视为新的证据。”在规定举证期限内，被告韩国企业银行未提交证据，也未提出延期举证的申请；其在庭后提交的证据，不属于举证期限届满后新发现的证据，或者在举证期限内无法提供的证据；在本案其他当事人拒绝质证的情况下，对韩国企业银行提交的这些证据不组织质证。
　　《中华人民共和国民法通则》（以下简称民法通则）第一百四十二条第三款规定：“中华人民共和国法律和中华人民共和国缔结或者参加的国际条约没有规定的，可以适用国际惯例。”本案被告韩国企业银行是外国法人，本案案由是涉外信用证纠纷，各方当事人在起诉及答辩过程中，均以UCP500为依据。由于我国目前没有调整信用证关系的法律规定，而UCP500是调整这一关系的国际惯例，故在本案中应当适用。
　　UCP500第九条a款I项规定，对即期付款的不可撤销信用证而言，只要在信用证规定的单据全部提交指定银行或开证行，并且这些单据又符合信用证条款的规定时，便构成开证行即期付款的确定承诺。作为开证行，被告韩国企业银行开出的是见票即付的不可撤销信用证。只要原告口福食品公司依照信用证的约定，将单据提交给被告中行核电站支行，并经该行转给韩国企业银行，韩国企业银行就应当履行开证行义务，向口福食品公司支付信用证项下款项。UCP500第十四条b项规定：“开证行及／或保兑行（如有），或代其行事的指定银行，收到单据后，必须仅以单据为依据，确定这些单据是否表面与信用证条款相符。如与信用证条款不符，上述银行可以拒绝接单。”d款I项规定：“如开证行及／或保兑行（如有），或代其行事的指定银行决定拒绝接单，它必须不延误地以电讯方式通知有关方；如不可能用电讯方式通知时，则以其他快捷方式通知此事，但不得迟于收到单据的翌日起算第七个银行工作日。该通知应发给寄单银行，或者，如直接从受益人处收到单据者，则应通知受益人。”在收到中行核电站支行转寄的单据后，韩国企业银行虽曾提出过单证不符，但中行核电站支行回电认为不符点不成立后，在UCP500规定的有效通知期内，韩国企业银行再未提出不符点问题，已经丧失以单证不符为由拒绝接单的权利。韩国企业银行最终是以存在信用证欺诈及韩国汉城法院下达止付令为由退单，在口福食品公司提起诉讼后，韩国企业银行再以单据不符为由抗辩，显然既不符合事实，也不符合UCP500的规定。UCP500第三条a款规定：“就性质而言，信用证与可能作为其依据的销售合同或其他合同，是相互独立的两种交易。即使信用证中提及该合同，银行亦与该合同完全无关，且不受其约束。因此，一家银行作出付款、承兑并支付汇票或议付及／或履行信用证项下其他义务的承诺，并不受申请人与开证行之间或与受益人之间在已有关系下产生的索偿或抗辩的制约。”信用证关系独立于基础合同，不受因基础合同关系产生的索偿与抗辩制约，虽然欺诈可以例外，但韩国企业银行在举证期限内，并未提交任何足以证明欺诈存在的证据，故该抗辩理由也不能成立。在此情况下，口福食品公司请求韩国企业银行支付信用证项下款项及相应利息，应予支持。
　　原告口福食品公司与被告中行核电站支行没有签订过关于议付的书面合同，双方之间不存在有关议付的合同关系，中行核电站支行没有议付单据的合同义务。UCP500第十条b款Ⅱ项规定：“议付意指受权议付的银行对汇票及／或单据付出对价。仅审核单据而未付对价者，不构成议付。”c款规定：“除非指定银行是保兑行，否则，指定银行地开证行指定其付款、承担延期付款责任、承兑汇票或议付并不承担责任。除非指定银行已明确同意并告知受益人，否则，它收受及／或审核及／或转交单据的行为，并不意味着它对付款、承担延期付款责任、承兑汇票或议付负有责任。”中行核电站支行不是本案信用证的保兑行，虽然本案信用证可由任何银行为议付行，但中行核电站支行在接收口福食品公司交来的信用证及其项下全部单据后，没有明确表示过同意议付，更未支付对价，仅做过审单、寄单等处理，因此该支行是寄单行，不是UCP500规定的议付行，没有必须议付的法定义务。口福食品公司以中行核电站支行是议付行为由，请求判令该支行承担连带偿付责任，缺乏事实根据与法律依据，该请求不能成立。
　　据此，南京市中级人民法院于2002年12月30日判决：
　　一、被告韩国企业银行于判决生效后10日内，向原告口福食品公司支付信用证项下的款项110500美元及利息；
　　二、驳回原告口福食品公司对被告中行核电站支行的诉讼请求。
　　案件受理费14 137元，由被告韩国企业银行负担。
　　韩国企业银行不服一审判决，向江苏省高级人民法院提起上诉。理由是：1.本案信用证的受益人是LIANYUNGAND KUCHIFUKU FOODS CO.LTD，而被上诉人口福食品公司的英文名称是LIANYUNGANG KUCHIFUKU FOODS CO.LTD，故口福食品公司并非本案信用证的受益人。一审判决认定主体错误。2.口福食品公司私刻印章，伪造不是自己名下的单据文件，还倒签提单上的货物装船日期，欺诈信用证项下的当事人，证据确凿。3.口福食品公司实施这些欺诈行为，其真实动机是其装运的货物质量低劣，只能通过这些手段来欺骗上诉人，以达到用伪造单据来议付信用证项下款项的目的。综上，口福食品公司违反贸易合同在先，为了议付信用证而伪造议付单据欺骗上诉人在后，且因货物延迟到港，给开证申请人造成了实质性损害。依照信用证欺诈例外的国际惯例，上诉人有权拒付信用证项下款项。请求二审改判驳回口福食品公司的诉讼请求。
　　韩国企业银行向二审法院提交以下证据：
　　1.口福食品公司章程，用以证明口福食品公司在工商行政管理机关登记的英文名称为“LIANYUNGANG KUCHIFUKU FOODS CO.LTD”，而非信用证议付单据上的“LIANYUNGAND KUCHIFUKU FOODS CO.LTD”：
　　2.口福食品公司在其他交易中给韩国HANVIT银行的议付单据，用以证明口福食品公司曾经有过欺诈行为，并使用过与本次议付不同的名称和印章；
　　3.本案信用证项下的全套单据及其中文译本，用以证明口福食品公司要求付款时使用的英文名称与正确的英文名称不一致。
　　4.青岛海发实业公司发布的2002年5月、6月船期表复印件各一份，用以证明本案所涉“凌泉河”货轮的开船日期为6月1日，口福食品公司在提单上填写的日期是倒签。
　　韩国企业银行除提交上述证据外，还以其因客观原因无法调取“装船日期为2002年6月1日的提单副本”为由，申请二审法院查封中远公司所属“凌泉河”轮2002年5月至6月的航海日志，核实本案所涉提单项下货物的实际装船日期。
　　口福食品公司答辩称：1.上诉人韩国企业银行在二审中提交的证据1-3，与其在一审庭审后向一审法院提交的证据一致，是逾期证据，依法不能作为定案的根据；2.口福食品公司向韩国企业银行提示的所有议付单据，均符合UCP500的规定，不存在任何欺诈行为，韩国企业银行应承担无条件付款义务；3.口福食品公司在信用证规定的期限内装船，不存在任何倒签提单的行为。韩国企业银行如认为卖方利用合同欺诈，必须提供充分的证据支持；4.韩国企业银行以前后矛盾的理由拒付信用证，不符合国际贸易支付惯例。其拒付的真正原因，是进口商无力付款赎单。韩国企业银行的上诉理由不能成立，二审应当维持原判。
　　中行核电站支行答辩称：一审关于本支行的判决正确，应当维持。
　　应韩国企业银行的申请，结合本案实际情况，江苏省高级人民法院依职权调取以下证据：
　　1．中远公司给青岛中远国际货运有限公司（系中远公司在青岛的口岸公司）的函，主要内容是：中远公司要求青岛中远国际货运有限公司按口福食品公司限定的最后装船日期，在2002年5月31日装船完毕，并给口福食品公司签发5月31日的已装船提单；
　　2．从中国外轮理货公司青岛分公司调取的涉案货物装货单，主要内容是：口福食品公司已于5月31日，将货物送至青岛中远国际货运有限公司指定的场站，海关也已在5月31日放行；
　　3．从中国外轮理货公司青岛分公司调取的本案所涉货物装船作业单，主要内容是：“凌泉河”轮装载涉案货物的时间为2002年5月31日8时至6月1日4时；
　　4．从青岛中远国际货运有限公司调取的涉案货物提单副本打印件，证实提单于2002年6月1日签发；
　　5．对中国外运山东有限公司金安分公司的调查笔录，主要内容是：受口福食品公司委托，该公司在办理订舱、报关、码头接货等事宜中，先联系泛洋商船株式会社承运涉案货物，因遭拒绝，才又联系了中远公司，中远公司承诺于5月31日24时前将涉案货物装船；
　　6．对青岛中远国际货运有限公司的调查笔录，主要内容是：受中远集装箱运输有限公司蒋云龙的指示，该公司在5月31日开始将涉案货物装船，因有的货物是下半夜才装上船，故于6月1日签发提单。
　　对法院调取的上述证据，各方当事人均予认可。
　　江苏省高级人民法院经审理，除确认一审查明的事实外，还查明：
　　被上诉人口福食品公司收到上诉人韩国企业银行开具的信用证后，即组织了信用证项下货物，并向韩国泛洋商船株式会社联系装运事宜，在遭拒绝后又与中远公司进行联系，得到中远公司保证在信用证规定的最后装船日期前装船的承诺。2002年5月31日8时至6月1日4时，本案信用证项下货物装上“凌泉河”轮；6月1日，“凌泉河”轮开航；同日，承运方签发该批货物提单，但在出具给口福食品公司的提单上，承运方填写的装船时间为2002年5月31日。
　　在上诉人韩国企业银行开具的信用证中，受益人口福食品公司的英文名称被填写为“LIANYUNGAND KUCHIFUKU FOODS CO.LTD”。为了使议付单据与信用证一致，被上诉人口福食品公司将其英文名称中的“LIANYUNGANG”改为“LIANYUNGAND”，并在信用证议付单据上加盖了含有“LIANYUNGAND KUCHIFUKU FOODS CO.LTD”英文字样的印章。
　　此外，上诉人韩国企业银行虽然称被上诉人口福食品公司所供货物质量低劣，且因货物延迟到港，给开证申请人造成了实质性损害，但未提交相应证据。对承运人倒签提单一事，在二审庭审中，韩国企业银行也未能提交承运人是受口福食品公司指使或者与口福食品公司恶意串通的证据。在二审庭审中，韩国企业银行表示放弃第1项上诉理由，即不再认为口福食品公司非本案信用证受益人。
　　二审应解决的问题有：1.关于法律适用问题；2.关于是否构成伪造单据进行欺诈的问题；3.关于是否构成倒签提单进行欺诈的问题。
　　江苏省高级人民法院认为：
　　关于第一点。本案是信用证交易纠纷。在一审中，各方当事人均以UCP500作为诉辩依据，一审也适用UCP500作出判决。然而UCP500只能解决当事人在信用证交易中的地位和权利义务，不涉及信用证欺诈及其法律救济问题，因而不能解决上诉人韩国企业银行提出的信用证欺诈问题。对这个问题，韩国企业银行认为韩国法律是准据法，而被上诉人口福食品公司和原审被告中行核电站支行则主张以中国法律为准据法。信用证欺诈是侵权行为。民法通则第一百四十六条第一款规定：“侵权行为的损害赔偿，适用侵权行为地法律。”既然韩国企业银行主张口福食品公司伪造了单据和倒签了提单，而本案信用证项下的单据与提单均在中国签发，中国是侵权行为地，故应当适用中国法律解决信用证欺诈及其法律救济问题。
　　关于第二点。信用证欺诈，是指信用证受益人在根本无货或者质量低劣无法交货的情况下，单独或与他人恶意串通，伪造符合信用证要求的一种或几种单据，从开证行骗取信用证项下货款，从而使开证申请人遭受经济损失的行为。而在本案中，被上诉人口福食品公司是在向承运人交付了货物的情况下，制作或者获取了信用证要求的商业发票、汇票、装箱单和提单等单据，上诉人韩国企业银行没有证据证明口福食品公司所供货物质量低劣，因此不存在口福食品公司以质量低劣货物骗取信用证项下款项的问题。鉴于韩国企业银行在其开具的信用证中，已经将受益人口福食品公司的英文名称错写为“LIANYUNGAND KUCHIFUKU FOODS CO.LTD”，为了使议付单据与信用证一致，口福食品公司才在信用证议付单据上，将该公司英文名称填写为与信用证一致的错误名称，同时加盖了有同样英文名称的印章。虽然口福食品公司加盖在信用证议付单据上的印章有将错就错的英文名称，但同时也有该公司正确的中文名称。二审庭审中，韩国企业银行已经对口福食品公司的信用证受益人身份不存异议，说明口福食品公司在信用证议付单据中使用“LIANYUNGAND”一词，客观上没有引起歧义。因此，口福食品公司在信用证议付单据上错误填写该公司的英文名称，以及加盖含有同样英文名称的印章，是事出有因，不构成信用证欺诈。韩国企业银行关于口福食品公司私刻印章、伪造单据、构成信用证欺诈的上诉理由，不能成立。
　　关于第三点。现有证据证明，涉案货物是于2002年5月31日8时至6月1日4时装船，承运方于6月1日签发提单，而在承运方出具给被上诉人口福食品公司的提单上，填写的装船时间是2002年5月31日，确为倒签。即便如此，也不能认定口福食品公司实施了信用证欺诈行为。这是因为：1.在信用证规定的装船日期前，口福食品公司已经组织了货物，并将货物送至承运人指定的场站，办理好货物出关等必要手续，得到承运方关于在5月31日装船的承诺，客观上没有必要倒签提单；2.上诉人韩国企业银行不能以证据证明口福食品公司参与实施了倒签提单的行为，主观上有倒签提单的故意；倒签提单是承运方为履行其对口福食品公司的承诺而实施的欺骗行为，与口福食品公司无关；3.韩国企业银行虽然提出由于倒签提单，致使货物迟延到港，给开证申请人造成了实质性损害，但没有提交相应的证据。对开证申请人来说，本案的倒签提单没有给其造成实际损害。因此，本案虽然有倒签提单的事实，但不存在信用证受益人以此实施欺诈的主观恶意。对提单倒签，口福食品公司没有过错，不能认定构成信用证欺诈，韩国企业银行也不能以此为由拒付信用证项下货款。
　　民法通则第一百零六条第二款规定：“公民、法人由于过错侵害国家的、集体的财产，侵害他人财产、人身的，应当承担民事责任。”综上所述，上诉人韩国企业银行关于被上诉人口福食品公司伪造单据、倒签提单、所供货物存在质量问题，应适用信用证欺诈例外原则判决其不承担付款责任的上诉理由，不能成立。对议付单据与信用证上的受益人英文名称不符、提单上的装船日期倒签等问题，口福食品公司主观上没有进行欺诈的过错，不能由其承担信用证欺诈的民事责任。一审判决韩国企业银行承担信用证项下的付款义务，并无不当，应当维持。据此，江苏省高级人民法院依照《中华人民共和国民事诉讼法》第一百五十三条第一款第（一）项的规定，于2003年12月23日判决：
　　驳回上诉，维持原判。
　　二审案件受理费14 137元，由上诉人韩国企业银行负担。