[introduction of the lawyer in this case] Zhang Hongchao, senior partner of Liaoning Tongfang law firm, second-class lawyer, deputy director of the ideological, moral and Cultural Construction Committee of Liaoning Lawyers Association, deputy director of the reward and Punishment Committee of Shenyang Lawyers Association, and director of Shenyang Lawyers Association, is qualified as an independent director of a listed company. Since practicing, Lawyer Zhang Hongchao has handled many difficult cases. He has won the title of the first honest lawyer model and excellent lawyer in Liaoning Province. He is good at company establishment, enterprise restructuring, merger and reorganization, capital operation, construction project legal affairs, real estate enterprise legal affairs, contract legal affairs, duty crime defense business and other businesses. In terms of civil and commercial affairs, he has served as the legal adviser of many large companies and enterprises in Shenyang for many years, providing in-depth services for the production, operation and stable development of the client, and establishing a good mutual trust relationship with the client and relevant management departments. The high-quality legal service has created value for the enterprise and won wide respect and praise for Lawyer Zhang.
[key points of judgment] the parties shall provide evidence to prove the facts on which their claims are based or the facts on which they refute the claims of the other party. If a party fails to provide evidence or the evidence is insufficient to prove his claim before the judgment is made, the party who bears the burden of proof shall bear the adverse consequences.
[basic case] in 2015, Yulin company Yulin company (Party A) and Yamada company Yamada company (Party B) signed a supply and marketing contract, which agreed that Party A authorized party B to retail the products designated by Party A in the middle street stores. The distribution range of products includes Party A's Samsung brand TV, refrigerator, washing machine and household appliances. The authorized distribution period is from October 1, 2015 to October 1, 2016. According to the contract, the purchase price of Party B shall enjoy the price of the product price list published by Party A in the same period, and the price policy shall be implemented according to the product price of the same period published by Party A. Article 8 rights and obligations of Party B in the contract, paragraph 3 of item (II) of the obligation stipulates that Party B shall cooperate with Party A in advertising and promotion activities. It is agreed in Article 8 that any party of the two parties in economic exchanges shall notify the other party in writing of the transfer of profits (rebates), rebates (commissions), rewards, etc., and conduct the receipt and payment settlement through the financial departments of both parties. Party A's employees who violate the above provisions have the right to complain to Party A's discipline inspection department. Article 9 of the contract stipulates that Party B shall complete the annual sales target of 10 million yuan, and the reward standard shall be 2%. The confirmation of sales data shall be subject to the confirmation sheet issued by Party A. After the signing of the above contract, the original and Yamada companies began to cooperate according to the contract. The cooperation mode is that Yamada company orders from Yulin company, and Yulin company supplies to Yamada company after the goods are prepared. Each order will form a payment order letter. The payment order letter records ① the order amount, the basic rebate amount, the total remaining amount carried forward to the previous account, ③ the remaining amount used in the current period, ④ the rebate amount used in the current period, ⑤ the rebate amount generated by the current order, and ⑥ the rebate reached. Receivables amount = ① - ② - ③ - ④ - ⑤ - ⑥. If rebate is recorded in the payment order letter, the corresponding prior commercial negotiation agreement shall be attached to the payment order letter. Yamada company paid to Yulin company according to the amount recorded in the payment order letter sealed by Yulin company. The supplier code [3776] in dispute between the original company and Yamada company is ice washing product, and the supplier code [3777] is TV product. During the period from September 23, 2015 to September 11, 2017, there were 31 supply orders under [3776], and Yamada company has paid 9848985.63 yuan for goods; 56 supply orders under [3777], and Yamada company has paid 8709314.72 yuan for goods.
Yulin company believes that the rebate amount agreed in the prior negotiation agreement is wrong, and the payment order letter is only the instruction letter of Yulin company requesting Yamada company to pay the goods, which cannot reflect that both parties have reached a rebate agreement. It is made unilaterally by Yamada company according to the amount of the goods that can be paid to Yulin company according to the current order, and should not be recognized as rebate, Yamada company shall pay the unpaid part of the contract price to Yulin company. Yamada company believes that the amount confirmed according to the prior commercial negotiation agreement and the payment order letter is consistent with the actual payment amount of Yamada company recognized by both parties. The fact of rebate exists and is the true intention of both parties. There is no fact of investment and payment.
[judgment result] on January 30, 2019, the people's Court of Shenhe District of Shenyang made a first instance judgment: it rejected the lawsuit request of Shenyang Yulin Datong Trading Co., Ltd. After the judgment was pronounced, Shenyang Yulin Datong Trading Co., Ltd. filed an appeal, holding that the court of first instance had wrongly determined the rebate fact, and Yamada company should bear the burden of proof for the rebate and promotion matters of both parties, and the court of first instance had wrongly assigned the burden of proof to Yulin company. Yulin company has submitted the delivery details and other evidences to the court to prove that the amount of goods supplied by Yulin company to Yamada company under the supplier code [3776] [3777] has completed the burden of proof. Requests for annulment of the judgment of first instance and change of judgment according to law. The Shenyang intermediate people's court made a judgment on April 20, 2019: it rejected the appeal and upheld the original judgment.
[reasons for adjudication] the focus of the dispute in this case is whether the part of the payment for goods demanded by Yulin company to be paid by Yamada company has basis, that is, whether Yamada company has paid the payment for goods in full and whether Yulin company has completed the burden of proof in this case.
The effective judgment of the court held that the supply and marketing contract signed by Yulin company and Yamada company is the expression of true intention of both parties, legal and effective, and can confirm that there is a sales contract relationship between the original company and Yamada company. During the trial, Yamada company provided the corresponding payment order letter and attached the prior commercial negotiation agreement against the lawsuit request of Yulin company. The payment order letter has detailed records on the supply amount, carry forward amount, use rebate and final payment amount of each order. The amount of use rebate shown in the attached prior commercial negotiation agreement is consistent with the corresponding payment order letter. Although Yulin company does not recognize the authenticity of the signature and seal of the prior commercial negotiation agreement, it has no objection to the authenticity of the signature and seal of Yulin company on the payment order letter. Yamada company also performs the payment obligation to Yulin company according to the amount recorded in the payment order letter signed and confirmed by Yulin company. It can be seen that Yulin company and Yamada company clearly and unanimously agree on the amount of relevant deduction and rebate. At present, Yulin company denies the amount of the payment confirmed in the payment order letter only on the ground that it does not recognize the authenticity of the prior commercial negotiation agreement, and then requests Yamada company to pay part of the payment, but does not provide other evidence to support its claim. It is the burden of proof of the party that has not been completed and should bear the adverse consequences of failure to provide evidence. Therefore, Yulin company's claim lacks facts and legal basis.
Focusing on the appeal reason that Yulin company did not recognize the special seal for business in the payment order letter provided by Yamada company in the first instance, Yamada company provided the court with two copies of the payment order letter and the prior commercial negotiation agreement dated September 22, 2016 and April 3, 2017, which have been performed by both parties and have no objection, proving that Yulin company used the special seal for business in the transactions between both parties. The "payment order letter" is also attached with the pre negotiation agreement, which is also stamped with the special seal for business of Yulin company, which can mutually confirm that the special seal for business belongs to Yulin company. Both parties negotiate and confirm the transaction method and amount. The court organized cross examination, and Yulin company's cross examination opinion: there were objections to the authenticity, relevance and legality of the evidence. Yulin company recognizes that the special financial seal affixed in the payment order letter is the seal of Yulin company and is affixed by Yulin company. However, Yulin company does not recognize that the special business seal affixed in the two payment order letters is affixed by Yulin company, and Yulin company does not know who affixed the seal. In addition, there are several payment order letters between Yulin company and Yamada company during the performance of the contract. Only these two evidences can not prove that the special seal for business is the seal used by Yulin company daily. All the payment order letters during the transaction between Yulin company and Yamada company are provided by Yamada company to Yulin company. Yulin company returns the payment order letters to Yamada company after stamping the special seal for Finance on the payment order letters, All payment order letters shall be kept by Yamada company. For the payment order letter without the special financial seal, Yamada company cannot pay Yulin company according to the letter. The payment order letter is only an instruction for payment. Even if the two payment order letters are authentic, it can also indicate that the financial personnel of Yamada company do not recognize the special seal for business and only recognize the special seal for finance filed by the public security organ. Yamada company knows that the special seal for business is not the seal of Yulin company and has no legal effect.
The effective judgment of the court held that: since the two payment order letters and the attached prior commercial negotiation agreement are financial vouchers that have been performed by both parties and are relevant to the case, the Court confirmed the evidentiary effect of these evidences. During the trial, both parties confirmed that the facts identified by the court of first instance were correct, so the Court confirmed the facts identified in the first instance. In this case, Yulin company filed a lawsuit to require Yamada company to pay for the goods. According to Article 64 of the Civil Procedure Law of the people's Republic of China, "the parties have the responsibility to provide evidence for their claims." In this case, Yulin company shall bear the burden of proof. However, the evidence provided by Yulin company to the court of first instance is only a few of the delivery details. Because these delivery details only contain the name, quantity and model of the goods, and there is no unit price and total payment, it can not prove whether Yamada company is in arrears with Yulin company and the amount of payment in arrears. Yamada defended that it did not owe Yulin the payment, and provided the court with the payment order letter and the attached prior commercial negotiation agreement. Each payment order letter has detailed records on the supply amount, carry forward amount, use rebate and final payment amount of each order. The amount of use rebate shown in the attached prior commercial negotiation agreement is consistent with the corresponding payment order letter. Although Yulin company does not recognize the signature and seal of the prior commercial negotiation agreement, especially the authenticity of the special seal for business, it has no objection to the authenticity of the special seal for finance and other seals on the payment order letter, and Yamada company also performed the payment obligation to Yulin company according to the amount of the final payment payable recorded in the payment order letter signed and confirmed by Yulin company. Therefore, Yamada company has completed the burden of proof for its defense claim, and the evidence provided by Yulin company is not enough to prove that Yamada company owes its payment. Therefore, the court of first instance ruled that it is not improper to reject the claim of Yulin company.
Regarding the problem raised by Yulin company that the special seal for business of Yulin company's name stamped on the partial payment order letter and the prior commercial negotiation agreement provided by Yamada company in the first instance was not stamped by Yulin company, nor was it the seal used by Yulin company, nor was it inconsistent with the facts, Yamada company provided the court with the payment order letter and the attached prior commercial negotiation agreement on September 2, 2016, which have been performed by both parties and have no objection. Yulin company does not deny that the payment has been completed. However, both the payment order letter and the attached prior commercial negotiation agreement bear the special seal of Yulin company's name. Therefore, the court can only recognize that in the transaction between both parties, Yulin company has used this special seal for business, so the court does not support this appeal reason proposed by Yulin company. With regard to the issue raised by Yulin company that both parties should notify each other in writing of the transfer of profits, rebates and rewards in economic exchanges as agreed in the contract, and that Yamada company should bear the burden of proof for the rebate and promotion matters of both parties, it was found that Yamada company provided several payment order letters and prior commercial negotiation agreements formed in the transactions of both parties in the first instance, in which the supply amount The use of rebates and the final payment amount are recorded in detail and confirmed by both parties with signatures and seals. Therefore, the court will not accept the appeal reason put forward by Yulin company.
[relevant laws] Article 90 of the interpretation of the Supreme People's Court on the application of the Civil Procedure Law of the people's Republic of China stipulates that the parties shall provide evidence to prove the facts on which their claims are based or the facts on which they refute the claims of the other party, unless otherwise provided by law.
If a party fails to provide evidence or the evidence is insufficient to prove his claim before the judgment is made, the party who bears the burden of proof shall bear the adverse consequences.
[lawyer's opinion] the key to this case is whether the rebate facts of Yamada company and Yulin company exist, and the distribution of the burden of proof of both parties. The payment order letter and the prior commercial negotiation agreement (i.e. Rebate Agreement) signed by Yamada and Yulin are the true intention of both parties, legal and effective, and the rebate facts of both parties are real. In the trial of the first instance, Yamada company submitted to the court the payment order letter, the prior commercial negotiation agreement, and the payment voucher and invoice of each order with the same amount as that calculated in the payment order letter for each order under [3776] and [3777] according to the amount claimed by Yulin company, forming a complete chain of evidence, which is sufficient to prove the existence of rebate between both parties, Yamada paid according to the price calculated with Yulin company, and did not default any payment to Yulin company. As for Yulin company's claim that the payment order letter signed by Yulin company is the special financial seal affixed according to the requirements of Yamada company, it is wrong to determine that both parties have reached a rebate only according to the payment order letter. As an independent legal person engaged in commercial services for many years, Yulin company is aware of the act of affixing the special financial seal and the legal consequences, and shall bear corresponding legal liabilities. The act of affixing the special financial seal is to recognize the contents of the payment order letter, and the rebate of both parties is also recorded in the payment order letter. Therefore, the rebate reached by both parties is the expression of the true intention of both parties and should have legal effect.
The special seal for business stamped on the "prior business negotiation agreement" advocated by Yulin company is neither stamped nor used by Yulin company, which is also contrary to the fact. In the 15 long-term cooperation projects between Yamada company and Yulin company, Yulin company has stamped the special seal for business in the prior commercial negotiation agreement, and the orders under other projects have been fulfilled by both parties through the same process as this case. Yulin company has not raised any objection. At the same time, Yulin company also affixed both the special seal for business and the special seal for Finance on other payment order letters, and Yulin company recognized the authenticity of the special seal for Finance on its payment order letter during the trial. Therefore, it can be proved that the special seal for business affixed by Yulin company in the prior commercial negotiation agreement is the seal used and recognized in its business dealings. At the same time, the rebate amount confirmed in each "prior commercial negotiation agreement" is also consistent with the rebate amount confirmed in its corresponding "payment order letter". Therefore, the signing of the prior business negotiation agreement is also the true intention of Yulin company, and the rebate amount should be recognized.
During the trial, Yamada company has provided the corresponding payment order letter and attached the prior commercial negotiation agreement for each order under [3776] [3777] filed by Yulin company, and the supply amount, settlement amount, use rebate and final payment amount of each order in the payment order letter are recorded in detail, The amount of rebate used as shown in the attached prior commercial negotiation agreement is also consistent with the corresponding payment order letter