Korean Shinho Company vs. Sichuan Euro-Asia Economy and Trade General Company, al.

韩国新湖商社与四川省欧亚经贸总公司等信用证欺诈纠纷管辖权异议案

Korean Shinho Company vs. Sichuan Euro-Asia Economy and Trade General Company, al.

(Case of Jurisdictional Objection on Dispute over Fraud on Letter of Credit)

[No. 35 (2001) of Announcement of the Supreme Court]

Written Civil Judgment of the Supreme People's Court of the People's Republic of China

[No. 155 (2000) of Final Judgment by the Economic Tribunal]

Appellant (plaintiff in the original trial):

Korean Shinho Co., located at 309-3 Ho, Ger ma-Dong, Ser Qu, DAE Seon, Korea.

Legal representative:

Li Shunji, representing director.

Authorized agent:

Zhang Yaojun, lawyer from Beijing Li De Law Firm.

Appellee (defendant in the original trial):

Sichuan Provincial Euro-Asia Economy and Trade General Company, located at the 5th Floor, Fuzhan Building, No.78, Section 2 of Hongxing Rd., Chengdu City, Sichuan Province, the People's Republic of China.

Legal representative:

Huang Xinyu, Chairman of the Board of the Company.

The third party in the original trial:

National Agricultural Cooperative Federation of Korea, located at 75, 1-Ka, Choongjeong-Ro, Chung-Ku, Seoul, Korea.

Legal representative:

Won Gill Hee, Chairman of the Federation.

The third party in the original trial:

Chengdu City Zongfu Sub-branch of the Agricultural Bank of China.

Responsible person:

Pan Qiong, vice president of the sub-branch.

Korean Shinho Company (hereinafter referred to as “Shinho Co.”) refuses to accept Civil Judgment No. 1 (1999) of the initial first judgment instance by the Economic Tribunal of the Higher People's Court of Sichuan Province (hereinafter referred to as “Sichuan Court”), and has filed an appeal at the Supreme People's Court (hereinafter referred to as the “Supreme Court”) against Sichuan Provincial Euro-Asia Economy and Trade General Company (hereinafter referred to as “Euro-Asia”), National Agricultural Cooperative Federation of Korea (hereinafter referred to as the “Federation”), Chengdu City Zongfu Sub-branch of the Agricultural Bank of China (hereinafter referred to as “Zongfu Sub-branch”) concerning the case of jurisdictional objection on their the dispute over fraud on letter of credit. The Supreme Court has, in accordance with the law, formed a collegial panel, deliberated and tried the case. The collegial panel is composed of Li Jian, deputy chief judge of the second civil tribunal, who holds the post of presiding judge, Qian Xiaochen and Chen Jizhong, who hold the posts of acting judges.

The facts relating to the jurisdiction in this case which have been verified by the Supreme Court during the second instance trial are:

On December 4th of 1998, Euro-Asia brought a lawsuit at Sichuan Court against defendant with Shinho Co. to be the defendant, and third parties the Federation and, the International Business Department of Sichuan Provincial Branch of the Agricultural Bank of China (hereinafter referred to as “IB Dept. of Agricultural Bank”) to be the third persons. Euro-Asia requested Sichuan Court to rule that: 1). the letter of credit, with the plaintiff to be the applicant of credit and the defendant to be the beneficiary, which was opened to by the Federation (the negotiating bank) and accepted by Sichuan Provincial Branch of the Agricultural Bank of China (the issuing bank), should be invalid, and the payment should be terminated; 2). the defendant should bear all litigation costs in this case. The plaintiff claims that from September to October of 1997, Euro-Asia and Shinho Co. concluded four sales contracts by fax in Chengdu, Sichuan, China, and it was stipulated in the contracts that the letter of credit shall be the method of payment. For this purpose, Euro-Asia as the applicant for the credit applied to the IB Dept. of Agricultural Bank (the issuing bank) from April to August of 1997 and issued five letters of credit to Shinho Co. to be the beneficiary and the Federation to be the negotiating bank. The total amount of the opened and accepted letters of credit was 9,867,601.93 USD. However, Shinho Co. neither provided the goods, nor loaded or transported them. Instead, it made false shipping bills of lading, and committed fraud. Shinho Co. stated in the bills of lading that the shipment which it designated as goods should arrive at Shantou, the destination port, by the end of October 1997. However, Shantou Maritime Security Supervision Bureau under the Ministry of Communications of the People's Republic of China proved that, from January to December 1997, there was not a single ship for which “the formalities for entry and exit from of passing in and out of the port were fulfilled in by this Bureau.” Then, Euro-Asia notified Shinho Co. in appropriate time, but Shinho Co. never did not give its reply. At the same time, the Federation as the negotiating bank clearly knew that the documents submitted by the defendant (who was the beneficiary) were false, though it still submitted these false documents to the IB Dept. of Agricultural Bank (the issuing bank), and managed to fraudulently make the issuing bank accept the amount under the above four letters of credit. The Federation (the negotiating bank) and Shinho Co. (the beneficiary) colluded together and deliberately concealed the falsity of the documents. Thus, their acts had completely violated the principles of good will, credit and honesty, and had constituted fraud.

On November 6th, of 1998, that is, before the lawsuit, Euro-Asia applied to Sichuan Court with Shinho Co. to be the respondent and the IB Dept. of Agricultural Bank to be the third party to cease the payment of the letters of credit. On November 18th of 1998, Sichuan Court, by rendering a written Civil Judgment of No. 9 (1998) for filing the case for preservation in Sichuan, froze a total amount of 9,867,591.83 USD under the letters of credit of the IB Dept. of Agricultural Bank, with their numbers separately to be: 220LC9706124, 220LC9704079, 220LC9709161, 220LC9709162.

The Federation filed a substantial defense, while Shinho Co. proposed a jurisdictional objection with the reason that there was an arbitration clause in the its sales contracts concluded between Euro-Asia and itself. The arbitration clause stipulated that: “Any dispute arising from both parties shall be arbitrated in accordance with the commercial arbitration clause by the commercial arbitration committee of a third country which shall make a final award.”

It was Sichuan Court's opinion that the arbitration clause on the basis of which Shinho Co. proposed the jurisdictional objection was a stipulation in the sales contracts between Shinho Co. and Euro-Asia, which was irrelevant to the dispute in this case. Moreover, this clause provided that, with regards to arbitration, “any dispute arising from both parties shall be arbitrated in accordance with the commercial arbitration clause by the commercial arbitration committee of a third country which shall make a final award.” The clause is an unclear stipulation, and Euro-Asia had chosen to bring a lawsuit to the court, which meant that it had waived the right to renegotiate for clarification. In accordance with Article 18 of the Arbitration Law of the People's Republic of China, the arbitration clause should be invalid. The Sichuan Court rendered the following judgment in accordance with Articles 38 and 249 of the Civil Procedure Law of the People's Republic of China that: Korean Shinho Co.'s objection based on jurisdiction in this case should be rejected.

Shinho Co. refused to accept the first instance judgment, and appealed to the Supreme Court claiming that: 1). The ascertainment finding in the first instance judgment that “the arbitration clause on the basis of which Shinho Co. proposed the jurisdictional objection was a stipulation in the sales contracts between Shinho Co. and Euro-Asia, which was irrelevant to the dispute in this case over fraud on the letters of credit” was a wrong ascertainment. If this case was of fraud on letter of credit, and the deceiver was Shinho Co., then the deceived party should be the Federation as the negotiating bank or Zongfu Sub-branch as the issuing bank instead of Euro-Asia; and the plaintiff of this case should be the Federation or Zongfu Sub-branch rather than of Euro-Asia. 2). It was ascertained in the first instance judgment that the arbitration clause stipulated in the contracts between Shinho Co. and Euro-Asia was “an unclear stipulation, and Euro-Asia had chosen to bring a lawsuit to the court, which meant that it had waived the right to renegotiate for clarification”. Therefore, it was also wrong to say that the arbitration clause was invalid. It was both Euro-Asia's right and its obligation to renegotiate on the arbitration clause, while a right may be waived, an obligation must be performed. Euro-Asia's unilateral action had violated Chinese law, thus it was absolutely impossible to conclude that “the arbitration clause was invalid” from the said action. 3). It was also wrong for the first instance judgment to reject Shinho Co.'s jurisdictional objection in accordance with Article 18 of the Arbitration Law of the People's Republic of China. In this case, Euro-Asia had never negotiated with Shinho Co. at all on the conclusion of a supplementary agreement, and there was no fact of failing to reach a supplementary agreement all the more. Therefore, the law was wrongly applied in the first instance judgment to reject Shinho Co.'s jurisdictional objection in accordance with Article 18 of the Arbitration Law of the People's Republic of China. Thus Shinho Co. requested the Supreme Court to render an impartial ruling in accordance with the law.

Euro-Asia did not file a defense.

It was the Supreme Court's opinion that:

Euro-Asia's claim in its lawsuit to Sichuan Court was to declare the letters of credit invalid. The defendant in the lawsuit Shinho Co. was the beneficiary of the letters of credit, and Shinho Co., who was the selling party in the basic transaction of the sales contracts. The cause of the lawsuit was the fraud in the basic transaction. The direct legal relationship between both parties was the sales contracts, while the letters of credit were only a method of payment stipulated in the contracts. Euro-Asia was the applicant for the credit and Shinho Co. was the beneficiary of the credit, and the basis upon which Euro-Asia brought a lawsuit against Shinho Co. over fraud in the on letters of credit was that the latter made use of falsified documents to fraudulently obtain the money under the letters of credit. The opinion of the first instance judgment that what had been tried was only the relationship of letter of credit had deviated from the lawsuit brought by Euro-Asia and was not proper. The arbitration clause in the sales contracts between Shinho Co. and Euro-Asia was unclear and unable to be executed. It was necessary for the parties to renegotiate, but Euro-Asia had chosen litigation to settle the dispute, which meant that it had waived the willingness of arbitration. Shinho Co. had no factual or legal basis to say that it was both the party's right and its obligation to renegotiate. For this point, the finding of the Sichuan Court's ascertainment was correct. In accordance with Article 145 of Opinions of the Supreme People's Court on Some Issues Concerning the Application of the Civil Procedure Law of the People's Republic of China: “Where, in accordance with Item (2) of Article 111 of the Civil Procedure Law, the parties have concluded an arbitration clause in their written contract, or have reached a written arbitration agreement after a dispute arises, and one party brings a lawsuit to the people's court, the people's court shall not accept the lawsuit, and shall inform the plaintiff to apply to the arbitration institution for arbitration, unless the arbitration clause or the arbitration agreement is invalid or invalidated or the contents of which are unclear and unable to be executed.” Since neither the method nor the institution of arbitration was stipulated in the arbitration clause in the original sales contracts, the arbitration clause was unclear and unable to be executed. , Sichuan Court should have accepted Euro-Asia's lawsuit.

Although the letter of credit is a method of settlement of transaction, it is independent from the basic transaction, and is a document transaction which complies with the principle of strict conformity. Usually a party shall not demand the cessation of payment of a letter of credit or declare a letter of credit invalid with a reason rooted in the basic transaction. An exception to the above said principle is the principle of exception for fraud on letter of credit. “The principle of exception of fraud on letter of credit” means that the relationship of the letter of credit and the basic transaction shall be independent from each other where on the condition that there is substantial fraud existing in the basic transaction. The application of “the principle of exception of fraud” is applied on the premises of the fraud in the basic transaction, and the cessation of payment under the letter of credit must also be tried in combination with the dispute in the basic transaction and the legal relationship of the letter of credit. There exists the system of third person in the Civil Procedure Law of the People's Republic of China, and Euro-Asia's claim included the validity of the letters of credit and the requirement on cessation of payment. If Euro-Asia won the case, the request for cessation of payment of the letters of credit would be supported, and then the result would definitely involve with whether the negotiating bank's request for the issuing bank to perform the obligations under the letters of credit was tenable. If Euro-Asia lost the case, then the issuing bank should bear the liability of payment under the letters of credit. Therefore, it might be considered that the judgment of this case involves the legal relationship of interest between both the issuing bank and the negotiating bank. Thus it was correct for Sichuan Court to add Zongfu Sub-branch and the Federation to be the third persons in this case. However, it is precisely because the trial of this case involved both the basic relationship of the sales contract and the dispute over the letters of credit that the cause of this case should be ascertained to be the dispute over the payment of letters of credit for international sale of goods. In short, Sichuan Court had the jurisdiction over both the dispute over the sales contracts and that over the letters of credit, and its judgment to reject Shinho Co.'s objection was correct. Therefore, the Supreme Court rendered the following judgment in accordance with Article 24 and Article 38 of the Civil Procedure Law of the People's Republic of China:

The appeal should be rejected and the original judgment be sustained;

The 50 yuan of lawsuit acceptance fee for the second instance trial should be borne by Shinho Co.;

This Judgment shall be final.

Presiding Judge: Li Jian

Acting Judge: Qian Xiaochen

Acting Judge: Chen Jizhong

December 13, 2000

Court Clerk: Gao Xiaoli

韩国新湖商社与四川省欧亚经贸总公司等信用证欺诈纠纷管辖权异议案
（法公布（2001）第35号）

中华人民共和国最高人民法院
民事裁定书

（2000）经终字第155号

　　上诉人（原审被告）：韩国新湖商社。
　　法定代表人：李顺基，代表理事。
　　委托代理人：张耀军，北京市利德律师事务所律师。
　　被上诉人（原审原告）：四川省欧亚经贸总公司。
　　法定代表人：黄新钰，该公司董事长。
　　原审第三人：韩国农业协同组合中央会。
　　法定代表人：元喆喜，该会会长。
　　原审第三人：中国农业银行成都市总府支行。
　　负责人：潘琼，该行副行长。
　　韩国新湖商社（以下简称新湖商社）因与四川省欧亚经贸总公司（以下简称欧亚公司）、韩国农业协同组合中央会（以下简称农协会）、中国农业银行成都市总府支行（以下简称农行成都市总府支行）信用证欺诈纠纷管辖权异议一案，不服四川省高级人民法院（1999）川经初字第1号民事裁定，向本院提起上诉。本院依法组成由民二庭副庭长李健担任审判长，代理审判员钱晓晨、代理审判员陈纪忠参加评议的合议庭进行了审理。
　　本院二审期间查明与本案管辖权有关的事实是：1998年12月4日，欧亚公司以新湖商社为被告，农协会、中国农业银行四川省分行国际业务部（以下简称农行国际业务部）为第三人向四川省高级人民法院提起诉讼，请求：1．判决以原告为信用证申请人，被告为受益人，由开证行中国农业银行四川省分行向议付行农协会开出并承兑的信用证无效，终止支付；2．判决被告承担本案的全部诉讼费用。其诉称的事实是：1997年9月至10月，欧亚公司与新湖商社双方通过传真方式在中国四川成都签订了四份购销合同，合同约定以信用证为支付方式。为此，欧亚公司为信用证申请人于1997年4月至8月申请开证行农行国际业务部开立了以新湖商社为受益人，农协会为议付行的五份信用证，开出并承兑信用证款项总金额为：9867601．93美元。但新湖商社既不提供货物，也不装船发运，并故意制作虚假装运提单，进行诈骗。新湖商社在提单上所载由其指定装运的船舶至迟应在1997年10月底到达目的港汕头，但经中华人民共和国交通部汕头海上安全监督局证明：1997年1月至12月期间，没有一艘“在我处办理进出口岸手续”。欧亚公司发现后，曾及时通知了新湖商社，但新湖商社一直未予答复。与此同时，作为议付行的农协会明知受益人的被告提交的单据是虚假的，但却将该虚假单据提交给开证行农行国际业务部，一次骗取了开证行对上述四笔信用证项下款项的承兑。议付行农协会同受益人新湖商社串通一气，故意隐瞒单据的虚假性，其行为完全违反了善意、信用、诚实原则，因而构成了欺诈。
　　欧亚公司在起诉前的1998年11月6日，以新湖商社为被申请人、农行国际业务部为第三人向四川省高级人民法院申请停止支付信用证，四川省高级人民法院于1998年11月18日以（1998）川立保字第9号民事裁定书裁定，冻结中国农业银行四川省分行国际业务部信用证号：220LC9706124、220LC9704079、220LC9709161、220LC9709162下的款项共计9867591．83美元。
　　农协会进行了实体答辩，而新湖商社则以其与欧亚公司之间订立的买卖合同有仲裁条款为由，提出管辖权异议。该仲裁条款约定：“因双方而引起的所有争议应由第三国商业仲裁委员会依商业仲裁条款而最终裁决。”
　　四川省高级人民法院认为：新湖商社提出管辖权异议所依据的仲裁条款是新湖商社与欧亚公司在销售合同中的约定，与本案的信用证欺诈纠纷无关。且该条规定：仲裁：因双方而引起的所有争议应由第三国商业仲裁委员会依商业仲裁条款而最终裁决。该条款约定不明，且欧亚公司选择向法院起诉，表明其已放弃重新协商予以明确的权利。根据《中华人民共和国仲裁法》第十八条规定，该仲裁条款无效。依照《中华人民共和国民事诉讼法》第三十八条、第二百四十九条的规定，裁定如下：驳回韩国新湖商社对本案管辖权的异议。
　　新湖商社不服原审裁定，向本院提起上诉称：一、原审裁定：“新湖商社提出管辖异议所依据的仲裁条款是新湖商社与欧亚公司在销售合同中的约定，与本案的信用证欺诈纠纷无关”是错误的认定。本案如果是信用证欺诈，欺诈者是上诉人的话，被欺诈者应当是作为议付行的农协会或者是作为开证行的农行成都市总府支行，而不是欧亚公司。本案的原告应当是农协会或者是农行成都市总府支行，而不是欧亚公司。二、原审裁定认定新湖商社与欧亚公司在合同中约定的仲裁条款“约定不明，且欧亚公司选择向法院起诉，表明其已放弃重新协商予以明确的权利”，因此，该仲裁条款无效同样是错误的。重新协商约定仲裁条款，既是欧亚公司的权利，也是其义务，权利可以放弃，义务必须履行。欧亚公司的单方行为，已经违反了中国法律的规定，根本不能由此推导出“仲裁条款无效”的结论。三、原审裁定适用《中华人民共和国仲裁法》第十八条驳回上诉人的管辖异议，也是错误的。在本案中，欧亚公司根本没有同上诉人协商补充协议签订一事，更不存在达不成补充协议的事实。因此，原审裁定适用《中华人民共和国仲裁法》第十八条，驳回上诉人的管辖异议，是适用法律错误。请求二审人民法院依法作出公正裁定。
　　被上诉人欧亚公司未进行答辩。
　　本院认为：原审原告欧亚公司向原审法院起诉的诉讼请求是宣告信用证无效，起诉的被告为信用证的受益人——基础交易买卖合同的卖方新湖商社，诉由是基础交易欺诈。由于两方之间最直接的法律关系是买卖合同，信用证是该合同中约定的支付手段．欧亚公司是开证申请人，新湖商社是信用证受益人，欧亚公司起诉新湖商社信用证欺诈的基础是称其利用伪造单据以图骗取信用证项下的货款。一审裁定认为其审理的仅仅是信用证关系，脱离了欧亚公司的起诉，是不妥当的。新湖商社与欧亚公司之间买卖合同中的仲裁条款是一个不明确的、无法执行的仲裁条款，需要当事人重新协商，但是欧亚公司已经采取了诉讼的方法解决本案的争议，表明其放弃了仲裁的愿望，新湖公司称重新协商既是当事人的权利又是当事人的义务并无事实和法律上的依据，对此一审法院的认定是正确的。根据最高人民法院《关于适用＜中华人民共和国民事诉讼法＞若干问题的意见》第145条的规定：“依照民事诉讼法第一百一十一条第（二）项的规定，当事人在书面合同中订有仲裁条款，或者在发生纠纷后达成书面仲裁协议，一方向人民法院起诉的，人民法院裁定不予受理，告知原告向仲裁机构申请仲裁。但仲裁条款、仲裁协议无效、失效或者内容不明确无法执行的除外。”由于原销售合同中的仲裁条款没有约定仲裁的方式和机构属内容不明确，无法执行，因此原审人民法院对欧亚公司的起诉应予受理。
　　信用证虽然是基础交易中的一个结算方式，但它又独立于基础交易，是遵循严格相符原则的单据交易。通常情况当事人不得以基础交易中的事由要求止付信用证或宣告信用证无效。对上述原则的例外就是信用证欺诈例外原则。所谓“信用证欺诈例外原则”是在基础交易存在实质性欺诈的情况下，可以构成信用证关系与基础交易相独立的例外。由于适用“欺诈例外原则”是以基础交易的欺诈为前提，而导致信用证项下款项止付这样的后果，也必须将基础交易纠纷与信用证法律关系结合起来进行审理。由于我国《民事诉讼法》有关于第三人的制度，并且原审原告欧亚公司的诉讼请求包括了对信用证的效力以及终止支付的要求，如果欧亚公司胜诉，信用证止付的请求得到支持，结果必然涉及到议付行关于开证行履行信用证项下的义务的请求是否成立；如果欧亚公司败诉，则开证行要承担信用证项下的付款责任。可以认为本案的判决结果与开证行和议付行有法律上的利害关系，因此一审法院将农行成都市总府支行和农协会列为本案第三人的作法并无不妥。但是，正因为本案的审理既包括了基础关系——买卖合同，又包括了信用证纠纷，因此本案的案由应认定为国际货物买卖信用证付款纠纷。
　　综上所述，原审法院对买卖合同和信用证纠纷均具有管辖权，其驳回新湖公司异议的裁定是正确的。因此，本院根据《中华人民共和国民事诉讼法》第二十四条、第三十八条的规定，裁定如下：
　　驳回上诉，维持原裁定。
　　二审案件受理费50元人民币由韩国新湖商社负担。
　　本裁定为终审裁定。

审　判　长　 李　健
代理审判员　 钱晓晨
代理审判员　 陈纪忠
二000年十二月十三日
书　记　员　 高晓力