At 10:00 on June 16, 2020 (Tuesday), the Supreme People's Court held a press conference to issue the "Guiding Opinions of the Supreme People's Court on the Proper Trial of Civil Cases Involving the New Coronary Pneumonia Epidemic (3)" and answer questions from reporters. The "Guiding Opinions 3" issued this time is based on the series of guidelines issued by the Supreme People's Court in the early stage, combined with the needs of trial practice, focusing on the applicable legal issues of transportation contracts and foreign-related commercial maritime cases that are greatly affected by the epidemic, and providing guidance opinion. The "Guiding Opinion III" has 19 articles in 9 parts and can be divided into four major sections. The "Guiding Opinion III" has 19 articles in 9 parts and can be divided into four major sections.
Litigants, litigation evidence, time limit and period. It is mainly to refine the specific provisions of the Supreme People’s Court’s "Guiding Opinions 1" for civil cases involving epidemics, especially combining the content of the newly revised judicial interpretation of civil litigation evidence in 2019, clarifying that parties affected by the epidemic will postpone the submission of identification materials and Issues such as authorization and entrustment procedures, application for extension of the proof period, cross-examination of foreign notarized documents that cannot be notarized or related certification procedures, application for extension of the defense and appeal, application for recognition and enforcement of foreign court judgments, rulings or suspension of the time limit of foreign arbitration awards, etc. .
The first section
Identification and application of the law. Affected by the epidemic, the most important issue of applicable laws is how to understand and apply force majeure and similar rules. Considering that the "Guiding Opinions 1" of the Supreme People's Court has clarified the specific application of force majeure rules in Chinese laws, the "Guiding Opinions 3" clarified the specific application of force majeure rules in accordance with the "Guiding Opinions". 1. Implementation. Regarding the application of extraterritorial law, it is proposed that the content of statutory law or case law similar to force majeure rules in the extraterritorial law should be accurately understood, and the content of the law should be correctly applied. It is particularly pointed out that "the provisions of force majeure in our country cannot of course understand similar provisions of extraterritorial law. ". At the same time, it also clarified the application method of international treaties and the application of the United Nations Convention on Contracts for the International Sale of Goods. Although there are not many provisions in this section, it can provide guidance for lower courts to apply extraterritorial laws and international treaties.
Second section
Legal issues concerning the application of transportation contracts, foreign-related commercial and maritime maritime cases that are greatly affected by the epidemic. We have learned through research that in these cases, how to adjust and balance the rights and obligations of the parties is a prominent issue that needs to be resolved urgently. The content of this section is also the specific refinement of the "Guiding Opinions 1" in the field of foreign-related commercial maritime trials.
The third plate
Green channel for litigation and referential enforcement of cases involving Hong Kong, Macao and Taiwan. Based on the results of the construction of smart courts in recent years, the "Guiding Opinion 3" proposes to actively open up litigation green channels, optimize cross-domain litigation services, and improve online litigation service procedures and operating guidelines in cases involving foreign commercial and maritime disputes related to the epidemic. . The people's courts hearing cases involving commercial and maritime disputes related to the epidemic in Hong Kong, Macao Special Administrative Region and Taiwan region may refer to the "Guiding Opinion III".
Fourth plate
Fafa (2020) No. 20
Supreme People's Court
Issued the "Regarding the Proper Trial of Civil Cases Involving the New Coronary Pneumonia Epidemic
Guiding Opinions on Several Issues (3)" Notice
The Higher People’s Courts of all provinces, autonomous regions, and municipalities directly under the Central Government, the Military Court of the People’s Liberation Army, and the Production and Construction Corps Branch of the Higher People’s Court of Xinjiang Uygur Autonomous Region:
The "Guiding Opinions of the Supreme People's Court on Several Issues Concerning the Proper Trial of Civil Cases Involving the New Coronary Pneumonia Epidemic (3)" are hereby printed and distributed to you, please implement them carefully.
Supreme People's Court
June 8, 2020
Guiding Opinions of the Supreme People's Court on Several Issues Concerning the Proper Trial of Civil Cases Involving the New Coronary Pneumonia Epidemic Situation (3)
In order to properly handle cases involving foreign-related commercial and maritime disputes involving the new crown pneumonia epidemic in accordance with the law, protect the legitimate rights and interests of Chinese and foreign parties equally, and create a more stable, fair, transparent, and predictable business environment under the rule of law, in accordance with relevant laws and judicial interpretations, combined with trial practical experience, Put forward the following guidance.
1. Regarding litigants
1. If a foreign enterprise or organization submits identification documents and a certification of a representative’s participation in the litigation to the people’s court, and cannot go through the notarization, certification or related certification procedures in time due to the epidemic or epidemic prevention and control measures, and apply for an extension of submission, the people The court shall approve it in accordance with the law and determine a reasonable extension of the time limit based on the actual situation of the case.
Foreigners, stateless persons, foreign companies and organizations who do not have a domicile in the territory of our country send or entrust the power of attorney from outside the territory of our country, and cannot go through the notarization, certification or related certification procedures in time due to the epidemic or epidemic prevention and control measures, The people's court shall handle the application for an extension of submission according to the provisions of the preceding paragraph.
2. Regarding litigation evidence
2. For evidence formed outside the territory of our country, if the party concerned cannot provide evidence within the originally scheduled period of evidence due to the impact of the epidemic or epidemic prevention and control measures, and applies for an extension of the period of evidence, the people's court shall require him to explain Basic information such as the form, content, and object of evidence to be collected and provided. If the reasons for review are justified, it shall be permitted, and the period of proof shall be appropriately extended, and other parties shall be notified. The extended period of proof is applicable to other parties.
3. For the notarization provided by one party and formed outside of our country, due to the epidemic or epidemic prevention and control measures, the notarization or related certification procedures cannot be completed in time, and the other party only raises an objection on the grounds that the notarization or related certification procedures have not been completed. The people’s court may inform it to express an opinion on the relevance and strength of the evidence under the premise of retaining the objection to the proof procedure.
After cross-examination, if the above-mentioned notarized documents are not related to the facts to be proved, or the facts to be proved cannot be proved even if the proof procedure requirements are met, the people's court shall not allow the application of the party providing the evidence to extend the period of proof.
3. Regarding the statute of limitations and period
4. Parties who do not have a domicile in the territory of our country cannot file a defense or appeal within the statutory period due to the epidemic or epidemic prevention and control measures, according to the "Civil Procedure Law of the People's Republic of China" Article. The people’s court shall approve the application for an extension under the provisions of Article 269, and determine a reasonable period of extension based on the actual situation of the case. However, if there is evidence that the parties have maliciously delayed the litigation, the application for extension shall not be allowed.
5. In accordance with Article 239 of the "Civil Procedure Law of the People's Republic of China" and Article 547 of the "Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China", the parties apply for recognition and The period for the execution of a legally effective judgment, ruling or foreign arbitral award made by a foreign court is two years. During the last six months of the statute of limitations, the party concerned cannot submit an application for recognition and enforcement due to the epidemic or epidemic prevention and control measures, and advocates suspension of the statute of limitations in accordance with the provisions of Article 194, Paragraph 1, Item 1 of the "General Principles of the Civil Law of the People's Republic of China" The people’s court should support it.
4. Regarding applicable laws
6. With regard to applicable legal issues in cases involving foreign-related commercial and maritime disputes related to the epidemic, the people’s courts shall determine that they shall apply in accordance with the Law of the People’s Republic of China on the Application of Laws in Civil Relations Concerning Foreign-related Civil Relations and other relevant judicial interpretations. The law.
Where Chinese laws should be applied, the specific application of force majeure rules shall be implemented in accordance with the Supreme People’s Court’s Guiding Opinions on Properly Trial of Civil Cases Involving the New Coronary Pneumonia Epidemic (1).
Where extraterritorial laws should be applied, the people's courts should accurately understand the statutory provisions or case law similar to force majeure rules in the extraterritorial law, and correctly apply them. The provisions of force majeure in our country cannot of course understand similar provisions of extraterritorial laws.
7. The People's Court shall determine the application of international treaties in accordance with the provisions of Article 4 of the "Interpretation of the Supreme People's Court on Several Issues concerning the Application of the Law of the People's Republic of China on the Application of Laws Concerning Foreign-Related Civil Relations (1)". For matters that are not adjusted by the treaty, the guidelines of our country’s laws on conflict norms should be adopted to determine the applicable laws.
When applying the United Nations Convention on Contracts for the International Sale of Goods, the People’s Court should note that my country has withdrawn its declaration of not being bound by Article 11 of the Convention and the relevant Article 11 of the Convention in 2013, and it still retains its exemption from Article 11 of the Convention. 1 Article 1 (b) binding statement. Regarding whether a country is a party to the convention and whether the country has made a corresponding reservation, you can check the status of the parties to the convention on the official website of the United Nations Commission on International Trade Law. In addition, in accordance with Article 4 of the Convention, the Convention does not adjust the validity of the contract and the possible impact of the contract on the ownership of the goods sold. Regarding these two types of matters, the guidelines of our country’s laws on conflict regulations should be adopted to determine the applicable law and make determinations in accordance with that law.
Where a party claims partial or full exemption of contract liability on the grounds of being affected by the epidemic or epidemic prevention and control measures, the people's court shall conduct a review in accordance with the relevant provisions of Article 79 of the Convention and strictly grasp the applicable conditions stipulated in this article. The interpretation of the provisions of the Convention should be interpreted in good faith based on the terms used in its context and with reference to the usual meaning of the object and purpose of the Convention. At the same time, it should be noted that the "Summary of Case Law of the United Nations Convention on Contracts for the International Sale of Goods" is not an integral part of the Convention. It can be used as a reference during the trial of the case, but it cannot be used as a legal basis.
5. Regarding the trial of foreign-related commercial cases
8. When trialing a letter of credit dispute case, the people's court shall follow the principle of independence and abstraction of the letter of credit and the principle of strict compliance. Accurately distinguish between malicious non-delivery of goods and cases where goods cannot be delivered due to the epidemic or epidemic prevention and control measures. In strict accordance with the provisions of Article 11 of the Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Cases of Letter of Credit Disputes, the parties are examined for creditworthiness The application for suspension of payment under the letter of credit should be supported on the grounds of certificate fraud.
For those applying the Uniform Customs and Practices for Documentary Credits (UCP600) of the International Chamber of Commerce, the people's courts must correctly apply the specific provisions of Article 36 of this practice regarding banks no longer honouring or negotiating. If the parties claim that the bank's business is interrupted due to the epidemic or epidemic prevention and control measures, the people's court shall determine whether it constitutes force majeure as provided in this article. Unless otherwise agreed by the parties regarding force majeure and its responsibilities.
9. When handling disputes over independent guarantees, the people's courts shall follow the principle of independence of guarantees and the principle of strict compliance. According to Article 12 of the Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Independent Guarantee Dispute Cases, it is strictly determined that the situation constitutes an independent guarantee fraud, and in accordance with the provisions of Article 14 of the judicial interpretation, the parties are examined for fraud by independent guarantees For this reason, whether the application for suspension of payment under the independent guarantee letter should be supported.
If the independent letter of guarantee states that the Uniform Rules on Demand for Payment of Guarantees (URDG758) of the International Chamber of Commerce shall apply, the people’s court must correctly apply Article 26 of the rules. Due to force majeure, the presentation or payment under the independent letter of guarantee or counter-guarantee cannot be fulfilled. Regulations and the corresponding extension system regulations. If the parties claim that the relevant business is interrupted due to the epidemic or epidemic prevention and control measures, the people's court shall determine whether it constitutes force majeure as provided in this article. Unless otherwise agreed by the parties regarding force majeure and its responsibilities.
6. Trial of cases concerning transportation contracts
10. According to Article 291 of the "Contract Law of the People's Republic of China", the carrier shall transport the goods to the agreed location according to the agreed or usual transportation route. If the carrier provides evidence to prove that the transportation route is changed due to the timely diagnosis and isolation measures on the means of transportation during the transportation, the carrier has notified the shipper in time, and the shipper claims that the carrier violated the obligations stipulated in this article, the people’s court shall not Give support.
The carrier provides evidence to prove that delivery is delayed due to the prevention and control of the epidemic or the prevention and control of the epidemic, the prohibition and restriction of the place of departure or arrival, the change of transportation routes, the restriction of loading and unloading operations, etc., and the delay of delivery has been notified to the shipper and the carrier in time Those who advocate exemption from corresponding liability shall be supported by the people's court in accordance with law.
7. Trial of Maritime and Maritime Commercial Cases
11. The carrier is obliged to handle the ship carefully before and at the time of sailing to keep the ship seaworthy. If the carrier fails to handle it carefully, the ship is not suitable for carrying specific cargo due to disinfection, fumigation and other epidemic prevention and control measures, or the number of certified healthy crew cannot meet the seaworthiness requirements, and the shipper claims that the ship is not seaworthy, the people’s court shall give it stand by.
If the shipper claims that the ship is unseaworthy only on the grounds that the ship has docked in an area affected by the epidemic or that one of the crew members has contracted new coronary pneumonia, the people's court will not support it.
12. Before the ship sails, if the following circumstances occur due to the epidemic or epidemic prevention and control measures, and the carriage contract cannot be performed, and the carrier or shipper requests to terminate the contract in accordance with Article 90 of the Maritime Law of the People’s Republic of China, the people’s court shall comply with the law Support: (1) The necessary crew and materials cannot be equipped within a reasonable period; (2) The ship cannot reach the port of loading and destination; (3) Once the ship enters the port of loading or destination, it cannot continue normal navigation, Berth; (4) The goods are included in the scope of temporary prohibition of import and export by the country or region where the port of loading or destination is located; (5) The shipper is unable to transport the goods to the dock of the loading port within a reasonable period due to the obstruction of land transportation (6) Circumstances where the contract cannot be performed due to other reasons that cannot be attributed to the carrier and shipper.
13. The port of destination is restricted from berthing and unloading due to the epidemic or epidemic prevention and control measures, which causes the carrier to unload at a safe port or location adjacent to the port of destination. Unless otherwise agreed in the contract, the shipper or consignee shall request the carrier The people's court shall not support the responsibility for breach of contract.
If the carrier fails to make proper arrangements for the storage of the goods after unloading the goods and promptly notify the shipper or consignee, the shipper or consignee requests the carrier to bear corresponding liabilities, the people’s court shall support it in accordance with the law.
14. If the consignee or shipper requests to reduce the container overdue usage fee due to the epidemic situation or epidemic prevention and control measures, the people's court shall guide the parties to negotiate and resolve it. If the negotiation fails, the people's court may adjust it according to the actual situation of the case. Generally, the replacement price of a container of the same type should be used as the upper limit of the demurrage fee.
15. After a freight forwarding company makes a booking with the carrier in the name of the shipper, and the carrier cancels the voyage or changes the voyage due to the epidemic or epidemic prevention and control measures, and the shipper claims that the freight forwarding company should compensate for the losses, the people's court shall not support it. However, if the freight forwarding company fails to fulfill its diligence and prudence obligations, fails to notify the shipper of the voyage cancellation or sailing schedule change in a timely manner, or has faults in cooperating with the shipper in handling related follow-up matters, and the shipper requests the freight forwarding company to bear corresponding responsibilities, the people The court supported it in accordance with the law.
16. Unless otherwise agreed in the contract, if a ship-repairing enterprise requests an extension of the delivery period based on the epidemic or epidemic prevention and control measures that have caused insufficient labor, delayed delivery of equipment and materials, and unable to resume work in a timely manner, the people's court may follow the epidemic or epidemic prevention and control The extent of the impact of the measures on the progress of ship repair and construction shall be supported as appropriate.
Due to the impact of the epidemic or epidemic prevention and control measures, the delayed delivery of the ship results in the application of new ship construction standards, unless otherwise agreed in the contract, the parties request to share the resulting increased costs and expenses, and the people's court shall comprehensively consider the epidemic or epidemic prevention and control measures The impact of delayed delivery and whether there are attributable reasons for the parties’ performance of the contract, etc., shall be supported as appropriate.
17. On January 29, 2020, the "Emergency Notice of the Ministry of Transport on Coordinating the Prevention and Control of the Epidemic and Waterway Transportation Guarantee" stipulates that port operating companies are prohibited from arbitrarily banning cargo ships and anchorages in the name of epidemic prevention and control. Isolation for 14 days and other measures. If the maritime department or port management department where the port operating company is located does not clearly require it, the port operating company arbitrarily limits the period of berthing of the ship on the grounds of quarantine and isolation, and the ship owner or operator requests it to bear the liability for compensation, the people’s court shall grant it stand by.
8. Regarding green channels for litigation
18. In hearing cases involving foreign-related commercial and maritime disputes related to the epidemic, the people’s courts should actively open up green channels for litigation, make full use of the achievements of smart court construction, and adhere to the organic integration of online and offline services, and optimize cross-border Domain litigation services, complete online litigation service procedures and operating guidelines to ensure that all links of online litigation are legal and standardized, clear and simple.
9. Regarding the trial of
cases involving Hong Kong, Macao and Taiwan 19. People's courts hearing cases involving the Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan Region related to commercial and maritime disputes related to the epidemic may refer to these opinions.