[introduction to the lawyer of this case]: Jiang Qian, partner of Liaoning Tongfang law firm. He is good at the company's legal affairs such as equity transfer, equity incentive, contract drafting and review, intellectual property protection, labor disputes, etc. He has successively provided legal services for brilliance Automobile Group Holding Co., Ltd., Shenyang Brilliance Jinbei Automobile Co., Ltd., new world (Shenyang) Real Estate Development Co., Ltd., Neusoft Philips Medical Equipment System Co., Ltd., Minmetals (Nanjing) International Trade Co., Ltd. and other enterprises.
[key points of adjudication]: retailers shall not abuse their dominant position to engage in unfair trading, and shall follow the principles of fairness, honesty and credit, and abide by the market trading order. Retailers are not allowed to charge or disguise bar code fees or fees charged for not providing services. Retailers shall register the sales promotion service fees collected, issue invoices to suppliers, and pay taxes according to regulations. The retailer shall inform the supplier of the deduction and deliver it to the supplier, otherwise the retailer's claim for deduction cannot be established.
[basic case]: H trading company, as a supplier, supplies alcohol products to retailers Tesco supermarket and supermarkets of its 20 branches and subsidiaries. Hunnan branch of Tesco supermarket and H trading company, as Party A and Party B respectively, sign purchase and sales contracts. At the same time, other 20 branches and subsidiaries of Tesco company, as Party C, seal the contracts. All parties shall notify and account for the delivery, receipt, payment and other transactions through the supplier software system of Tesco supermarket. Since August 2014, Tesco supermarket has stopped paying for goods to h trading company. After repeated requests from H trading company, Tesco supermarket has closed the login account of H trading company's supplier electronic reconciliation platform. H trading company has no choice but to file a lawsuit with the court. A total of 21 defendants, including Tesco supermarket, were requested to jointly pay more than 1.8 million yuan and corresponding interest to h trading company. We accept the entrustment of H trading company as our attorney to participate in the first and second instance proceedings.
As Tesco supermarket closed the login account of the electronic reconciliation platform of H trading company, the evidence of H trading company is only the first year contract signed by both parties, the payment invoice issued to 21 defendants such as Tesco supermarket, the promotion fee invoice issued by Tesco supermarket and the bank transfer details.
There are two reasons for the defense of Tesco supermarket during the litigation: first, Tesco supermarket and its defendants are legal entities with independent accounting, and H trading company shall split the amount of the claim and bring a separate lawsuit against each defendant; 2、 The unpaid amount is discount fee, logistics fee, promotion fee, etc., which the defendant has the right to deduct directly according to the contract.
The main focus of dispute in this case is: 1. Whether the plaintiff should split the lawsuit; 2、 The specific amount of the goods owed by the defendant; 3、 Whether the defendant's claim for deduction is tenable.
During the trial, H trading company submitted the contract, payment invoice, deduction invoice and bank transfer details to prove that the total amount of goods supplied by H trading company to the defendant was more than 8.6 million yuan, the amount of money received was more than 6 million yuan, the amount of money deducted by the defendant was more than 780000 yuan, and the amount of money owed was more than 1.8 million yuan. H trading company confirmed that it received a deduction notice of more than 780000 yuan, that is, a promotion fee invoice of more than 780000 yuan. H trading company believes that the defendants such as Tesco supermarket have no right to directly deduct the payment of H trading company as promotion fee, logistics fee and other expenses only according to the deduction rights agreed in the contract without issuing invoices and giving notice. In addition, both parties confirmed through accounting that there was a return in the later period, and the return amount was more than 300000 yuan. H trading company agreed to deduct this amount from the outstanding payment. As for other invoices, bank transfer details and other evidences provided by H trading company, the defendants such as Tesco supermarket refused to cross examine on the ground of the large number of bills, and insisted that the defendant had the right to deduct money as stipulated in the contract, and the amount claimed by H trading company was the amount of deduction.
[judgment result]: in the first trial, it was decided that 10 defendants including Tesco supermarket, after deducting the refund confirmed by both parties, paid more than 1.5 million yuan of the outstanding payment and interest to h trading company in a lump sum, and the case acceptance fee was borne by the defendant. Tesco supermarket and other defendants filed an appeal against the first instance judgment, and the second instance rejected the appeal and upheld the original judgment.
[reason for adjudication]: some of the defendants in this case are branch companies and cannot independently bear civil liabilities. Therefore, their civil liabilities shall be borne by the head office and other independent legal person companies.
In response to the defendant's claim of splitting the lawsuit, the court held that h trading company uniformly sent the goods to the defendant's unified storage company, and then the storage company distributed the goods to various stores. Moreover, the defendant set up an electronic reconciliation platform, which was managed and operated by the defendant in a unified manner, and the management department of the defendant finally informed the other defendants and H trading company of the accounting. Therefore, the defendant's claim to split the lawsuit is not supported.
With regard to the claim that the defendant's arrears are the deduction, the court held that the parties clearly agreed in the contract that the defendant should send a deduction notice to the plaintiff in the form of but not limited to electronic / book face-to-face statements, network reconciliation platforms, information, service fee invoices, etc. The plaintiff confirms that it has received part of the defendant's promotion fee invoice, which is deemed to have received the deduction notice of this part. The defendant fails to provide evidence to prove that it has served other deduction notices to the plaintiff, and does not support the defendant's claim.
[legal basis]: Article 12 of the measures for the administration of fair trade between retailers and suppliers stipulates that "retailers shall register the promotion service fees collected, issue invoices to suppliers, and pay taxes according to the provisions." Article 13 stipulates that "retailers shall not charge or collect the following fees in disguised form:... (5) fees charged on the grounds of festivals, store celebrations, new store opening, reopening, enterprise listing and merger without providing promotional services". And relevant laws and regulations such as the company law of the people's Republic of China, the contract law of the people's Republic of China, and the Civil Procedure Law of the people's Republic of China.
[lawyer's point of view]: this case is a typical case of the dispute over the purchase and sale contract between the supplier and the retailer. The supplier represented by the lawyer is at a disadvantage in the contract. The lack of evidence and the contract terms are unfavorable to the supplier are all risk factors in the lawsuit. In the supplier industry of large supermarkets, there are situations such as unequal trading positions, retailers unilaterally determine contracts with standard terms and are not allowed to be modified, retailers default on payment, arbitrarily deduct payment due for various reasons or collect various fees from suppliers, and the evidence of arrears is not easy to obtain. The Ministry of Commerce, the national development and Reform Commission, the Ministry of public security, the State Administration of Taxation and the State Administration for Industry and Commerce have issued corresponding management measures for the above-mentioned chaos. Acting lawyers can make reasonable use of the regulatory requirements of laws and regulations or industry regulations on retailers, and can turn the losing into winning in the case of being at a disadvantage in litigation. At the same time, for large-scale retailers, the standard text contract is often issued, and the attorney can also apply the legal provisions of standard terms to reduce the losses for the supplier according to the case situation.
In this case, Tesco supermarket, as a retailer, is based on the unilateral deduction right agreed in the contract between the two parties. In the event of a dispute, all arrears are classified as the amount to be deducted. However, the law restricts the withholding behavior of retailers. Retailers should register the promotion service fees collected, issue invoices to suppliers, and pay taxes according to the provisions. In this case, the invoice played an important role, not only proving the amount of the payment for goods and the amount of the service fee, but also playing the role of the deduction notice. In this case, the retailer arbitrarily exercised the right of deduction, but failed to provide the corresponding invoice or deduction notice, which violated both the legal provisions and the contract, so its claim was not supported.
In this case, H trading company issued the corresponding invoice according to the system settlement of Tesco supermarket in a timely manner, and was able to confirm the payables of the other party. In other such cases, it is also easy to see that the evidence such as the settlement certificate is at the retailer's place, the supplier does not have it, and the retailer does not settle in time. Due to the disadvantage of the contract status, the supplier has neither the confirmed unit price stamped by the other party nor the receipt certificate of the other party. In case of dispute, the supplier may not even be able to prove the basic amount owed and the supply quantity. At this time, the supplier needs to pay attention to collecting evidence by itself during the transaction process, so as not to suffer losses due to failure to remedy when going to the judicial procedure.