Trial court:Intermediate People's Court of Dalian City, Liaoning Province

Case No:(2023) Liao 02 min zong no 245

Cause of action:Disputes over sales contracts

Date of Referee:April 03, 2023

Intermediate People's Court of Dalian City, Liaoning Province

civil judgment

(2023) Liao 02 min zong no 245

Appellant (Defendant in Original Trial): Dalian Jianghuai Automobile Sales Co., Ltd., domicile: No. 94-2, Huadong Road, Ganjingzi District, Dalian City, Liaoning Province, unified social credit code: 91210211669245122U.

Legal Representative:Any certainExecutive Director of the Company.

Authorized agent ad litem: Zhang Chenglin, lawyer of Liaoning Tianying Law Firm.

Authorized agent ad litem:Liang Mouemployees of the company.

Appellee (plaintiff in the original trial):Jiao Mou Ming, male,Born on March 26, 1976 in Han, he now lives at No. 1-5, Jiaotun, Jinji Village, Anbo Town, Pulandian District, Liaoning Province.

Authorized agent ad litem:Tang Mouling.

The appellant Dalian Jianghuai Automobile Sales Co., Ltd. is in contact with the appellee.Jiao Mou MingIn the case of a dispute over a sales contract, the People's Court of Ganjingzi District, Dalian City (2022) Liao 0211 civil judgment No. 9994 at the beginning of the Republic of China appealed to this court. After filing the case on January 5, 2023, the court formed a collegial panel to hear the case according to law, and the case has now been concluded.

Dalian Jianghuai Automobile Sales Co., Ltd. appeals: revoke the first and second items of the first-instance judgment, and reject the appellee's claims. Facts and reasons: the original judgment of the 1. intentionally omits the facts of the case that should be identified, which is an error of identification. Article 8 of the Contract for the Sale of Automobile Products between the Appellant and the Appellee(2) Point of liability for breach of contract: "If one party fails to perform the contract on time, the breaching party shall pay the breach of contract to the other party at 0.3 per cent of the total amount of the contract". This section of the facts is an important agreement to determine the rights and obligations of both parties. The court of first instance was intentionally omitted from the "facts determined by this court after trial" on page 2 of the judgment and did not confirm it. Therefore, the facts are part of the sales contract signed by both parties. There is a clear agreement on the overdue performance of responsibilities and the right to terminate the agreement, which is legally binding on both parties. Omission identification is an error of fact. The application of law in the original judgment of the 2. is wrong. The court of first instance stated that the appellant's claim that the "Auto Product Sales Contract" had been terminated on April 30, 2021, saying that the appellant had breached the contract first, had no basis in the law, and did not recognize it, which was an error of applicable law. First of all, the total price of the car sold by the appellant was 224,000 yuan, and the appellee only paid a deposit of 20,000 yuan and did not fully fulfill the obligation to pay the car purchase price. The appellant's failure to notify the appellee to pick up the car within 30 days is a breach of contract by the appellant. However, after the car arrived on April 17, 2021, the appellee notified the appellee to pick up the car, and the appellee still had the obligation to pay the balance of 204,000 yuan when picking up the car. The appellee did not pick up the car, which was a violation of this obligation. It can be seen from this that there is a breach of contract by both parties in this case, I .e. the appellant is late in delivery (notice to pick up the car), and the appellee does not pick up the car or pay the balance of the car purchase. The trial court found that the appellant's unilateral breach of contract was wrong. Secondly, the appellant terminated the "Auto Product Sales Contract" between the two parties, and there was a contractual basis such as the aforementioned "Auto Product Sales Contract" Article 8 (2); there was also a legal basis, that is, the "the People's Republic of China Civil Code" Article 565 stipulates (content omitted). The original judgment said that the lifting had no basis in the law, which was a misinterpretation of the law and a cognitive error of the judge. Thirdly, in the case that both the appellant and the appellee are in breach of contract, it should be made clear that the appellant is in general breach of contract, I .e. overdue performance. Both parties agree in the contract that the liquidated damages to be paid by the breaching party shall be calculated according to 0.3 ‰ of the total contract amount per day. The appellant's overdue time shall be 26 days, and the liquidated damages shall be 1747 yuan. On the other hand, the appellee was in fundamental breach of contract. He took the initiative to find the appellee's salesman and said that the car was not wanted. After WeChat notified the car, he would not return to WeChat and pay the balance of the car. He should also bear the penalty for overdue performance for 13 days, that is, 873.6 yuan. At the same time, it also met the conditions for the termination of the contract. After the appellant's reminder, the appellee still failed to perform, and the contract was terminated by appeal according to law. Obviously, the appellant's overdue performance of 26 days, there is a contractual breach of contract relief, is not a fundamental breach of contract. The appellee made it clear that he did not want the car, that is, he would not perform the contract, which was a fundamental breach of contract. After the contract was terminated, he could not ask for the return of the deposit. Finally, as the appellee had notified the appellee on April 27, 2021 that if the balance of the car purchase was not delivered within 2 days, the "Auto Product Sales Contract" of both parties was terminated, and then the appellee did not deliver the balance of the car purchase, the contract between both parties was terminated on April 30, 2021. According to Article 566 of the the People's Republic of China Civil Code, "if the contract has not been performed after it is terminated, the performance shall be terminated, the performance shall be terminated." Therefore, the appellant sold the vehicle involved in the case after the termination of the contract in accordance with the law. If the appellant terminates the sales contract with the appellee, there is a legal basis and conforms to the procedures stipulated in the Civil Code, and the people's court shall recognize and protect it in accordance with the law. Moreover, after rescinding the contract between the two parties, the appellant sold the vehicles involved in the case at a reduced price in order to avoid losses (because the State Industry and Information Office notified on April 21, 2021 that it would not license the national five emission vehicles from July 1, 2021. If the vehicles were not sold, the vehicles would never be licensed again, and the appellant would lose huge losses). The selling price was 198,500 yuan, 23,500 yuan less than the contract price between the appellant and the appellant, no improper benefits were obtained, and the deposit withheld only made up for part of the appellant's losses and did not increase wealth as a result of the separate sale of the vehicle involved in the case. In summary, the appellant's termination of the contract is not the termination of the appellant's unilateral breach of contract, but the existence of the appellee's breach of contract, and there is a contractual agreement, the termination according to law. Before the discharge, the appellant issued a reminder to the appellee and fulfilled the notification obligation, which was in full compliance with the law. If the appellant's termination of the contract is determined, the appellant's lawsuit for termination of the contract should not be heard at all. 3. the court of first instance held that in the case of the appellant's breach of contract, the appellant's claim to apply the deposit penalty was based on the law and was an error in the application of the law. As mentioned earlier, the appellant's breach of contract is only overdue performance, only a general breach of contract, according to the contract, only to bear 0.3 per cent of the day of the breach of contract, according to the the People's Republic of China Civil Code article 563 (III) provisions, one of the parties delayed the performance of the main debt, after the reminder within a reasonable period of time has not been performed. The other party may terminate the contract. The appellee obtains the legal discharge right on the premise that the appellant is urged to deliver the car within a reasonable period of time. If the car cannot be delivered within a reasonable period of time to obtain the legal discharge right, the appellant is entitled to the discharge right only if it is 26 days overdue (notice to pick up the car), which is an error of applicable law. The deposit paid by the appellee is 20,000 yuan. According to the provisions of Article 8 (2) of the contract between the two parties, "if the car is not picked up within 10 days after the car arrives, the supplier has the right to terminate the contract and not return the deposit". The court of first instance ruled that the appellant should double the deposit of the appellee, which is an error of applicable law. According to Article 465 of the the People's Republic of China Civil Code, contracts established in accordance with the law shall be protected by law. A legally established contract is legally binding only on the parties. Accordingly, the original judgment violated the contractual agreement between the appellant and the appellee and was also an error in the application of law. To sum up, the appellant believed that the original judgment was wrong in determining the facts and applying the law, and requested that the original judgment be revoked in accordance with the law and the appellee's claim be rejected instead.

Jiao Mou MingThe reply said, 1. the signing of the "Automobile Product Sales Contract" between the appellant and the appellee on an equal and voluntary basis is an expression of the true intention of both parties. Not only the liability for breach of contract is stipulated in Article 8 of the contract, but also in the settlement method of Article 6 of the contract: the buyer (appellee) shall pay a deposit of 20,000 yuan only and the balance of 204,000 yuan from the date of signing the contract... Therefore, this contract belongs to the concurrence of liquidated damages and deposit. According to Article 588 of the the People's Republic of China Civil Code, if both parties agree on liquidated damages and deposit, one party will breach the contract, the other party may choose to apply the breach of contract or the deposit clause. Therefore, under the premise that the appellee claimed the deposit penalty in the first instance, there is no need to repeat the breach of contract situation in the first instance, and there is no improper fact finding. 2. "in the appeal petition, the appellant also admitted his breach of contract (page 2, line 9... the appellant failed to notify the appellee to pick up the car within 30 days, which belongs to the appellant's breach of contract)", after the two parties signed the sales contract, the parties should follow the principle of good faith and fully perform their obligations in accordance with the trading habits and agreements of the contract. Because the appellee purchased the "Geerfa" truck, not a private family car, involving the operation of the vehicle, the signing of the transport contract, the operation of the route of the appointment and other cumbersome procedures, so the delivery time of the vehicle, there are strict regulations. As a car sales company, the appellant has professionalism and authority over the delivery time of the vehicle. It failed to deliver the truck within the prescribed 30 days, which violated its commitment on the delivery time limit of the vehicle and the reasonable time limit of the market, resulting in the appellee's failure to achieve the purpose of the contract, which constitutes a fundamental breach of contract. To sum up, the court of first instance had clear facts and applied the law correctly, and requested to reject the appellant's appeal and uphold the original judgment.

Jiao Mou MingRequest to the court of first instance:1. Dissolve the sales contract of automobile products signed by both parties; 2. The defendant shall double the deposit of 40,000 yuan to the plaintiff if he uses the deposit penalty. 3. The litigation costs in this case shall be borne by the defendant.

The court of first instance found the facts:On February 20, 2021, the plaintiff (buyer) and the defendant (seller) signed the "Automobile Products Sales Contract", agreed that the plaintiff to purchase a Geerfa 6x 2 Class 2 car, the unit price of 224,000 yuan, the delivery time of 30, the delivery method and place agreed for the buyer to Dalian Geerfa within the delivery time. The inspection standard is that the appearance acceptance is qualified, the basic equipment conditions are met, the vehicle is running normally, and the buyer's vehicle is officially delivered. The settlement method is agreed that the buyer shall pay a deposit of 20,000 yuan and the balance of 204,000 yuan from the date of signing the contract. When the buyer receives the car, the one-time cash payment, after the full payment, the seller will be the vehicle certificate, invoice and vehicle information to the buyer. Regarding the liability for breach of contract, it is agreed that the seller has the right to withhold the deposit paid by the buyer if the buyer returns the car for breach of contract. If the seller cannot pay the car on time due to factory reasons or force majeure factors, the seller shall not be liable for breach of contract. This article stipulates that there is no bold or other form of emphatic expression of the font, which is consistent with the font, font size, thickness, etc. On the same day, the plaintiff paid a deposit of 20,000 yuan for the vehicle, and the defendant issued a receipt to the plaintiff.

On April 14, 2021, the plaintiff called the defendant's employee Qu Mou Yue. As of that day, the defendant was still unable to deliver the vehicle to the plaintiff. Qu Mou Yue said on the phone that the vehicle could not be supplied because of the lack of chips. The plaintiff said that the vehicle did not want the vehicle and asked for a refund of the deposit. On April 17, 2021, Qu Mouyue sent WeChat to the plaintiff, "Boss, the car you ordered has arrived"

On April 27, 2021, Qu Mouyue sent WeChat to the plaintiff, with the content of "Notice Letter: Jiao Mouming, according to Article 8, Point 2 of the contract we signed, you have not come to withdraw the car to deliver the balance of 204,000 yuan. According to the contract signed by both parties, you have already breached the contract. Now you are notified to deliver the balance within two days to perform the contract. This notice will automatically turn into a notice to terminate the car sales contract, at the same time, the seller will withhold the buyer's deposit and sell the vehicle separately. Please fulfill your contractual obligations in a timely manner after receiving this notification letter, or negotiate with the seller to resolve the problem. Notifier: Dalian Jianghuai Automobile Sales Co., Ltd. 27 April 2021." On June 15, 2021, the defendant sold the vehicle involved in the case to an outsider.

The court of first instance held that there was a contractual relationship between the plaintiff and the defendant for the sale of vehicles, and that the defendant, as the seller, had the obligation to deliver the subject matter in accordance with the agreement. Now the plaintiff requests to terminate the contract on the grounds that the defendant did not deliver the car according to the agreed time. Therefore, the focus of the dispute in this case is whether the defendant constitutes a breach of contract and whether the plaintiff has the right to claim double the return of the deposit. First of all, on the issue of delivery time. According to the contract between the two parties, the delivery time is30. Now the plaintiff claims 30 natural days, and the defendant interprets this as 30 working days. Both parties have differences on this agreement. The court of first instance holds that according to the provisions of Article 498 of the the People's Republic of China Civil Code, disputes over the understanding of standard clauses should be interpreted according to the usual understanding. The current contract does not specify whether 30 is natural days or working days. Under the condition that the number of days is not specially marked as working days, it is understood that the natural day is more in line with the common understanding, so the defendant should deliver the vehicle to the plaintiff before March 20, 2021. Now the defendant notified the plaintiff for the first time on April 17, 2021 that the vehicle had arrived at the defendant's place and had exceeded the agreed delivery period. Secondly, the question of whether the defendant's failure to deliver the vehicle on time constitutes a breach of contract and the plaintiff's ability to terminate the contract. Although the defendant has agreed in the contract that the seller shall not be liable for breach of contract if the seller fails to pay the car on time due to the factory's reasons or force majeure factors, this clause belongs to the standard clause stipulated in Article 496 of the the People's Republic of China Civil Code, and the agreed content of this clause exempts the defendant as the party providing the clause from the liability for breach of contract on the overdue delivery of the car, the defendant also did not prove that the content of the clause had been emphasized and noted to the plaintiff. According to Article 497 of the the People's Republic of China Civil Code, it should be invalid. Accordingly, the defendant's failure to deliver the vehicle on time was a breach of contract. In the case that the two parties did not reach a new agreement on this in the subsequent negotiation process, the breach of contract made it impossible for the plaintiff to obtain the car on time based on the contract. Moreover, the defendant claimed that the contract had been terminated on April 30, 2021, and sold the vehicle ordered by the plaintiff to another person on June 15, 2021. Therefore, the defendant approved the termination of the contract, and the vehicle sales contract between the two parties was actually impossible. Continue to perform. Accordingly, the plaintiff's request to terminate the contract has factual and legal basis, and the court of first instance supports it. As for the section on the termination of the contract in the case disputed by the defendant on April 30, 2021, the court of first instance held that, as mentioned above, the defendant had first violated the contractual obligation to deliver the vehicle on time, the defendant had breached the contract first, and the plaintiff was the contract-abiding party. the defendant, as the breaching party, claimed that the contract-abiding party had breached the contract and rescinded the contract accordingly, which was unfounded by the court of first instance. Finally, on the question of whether the plaintiff can claim a double return of the deposit. The court of first instance held that the contract involved in the case clearly stipulated that the seller had the right to withhold the deposit paid by the buyer in case of breach of contract. Therefore, the deposit of 20,000 yuan paid by the plaintiff belongs to the deposit stipulated in Article 5286 of the the People's Republic of China Civil Code. In case of breach of contract by the defendant, the plaintiff's request for the application of the deposit penalty is based on the law. Therefore, the court of first instance supported the plaintiff's request for double return of 40,000 yuan.

To sum up, according to Article 1 of the Provisions of the Supreme People's Court on the Application of the Time Effect of the the People's Republic of China Civil Code, Articles 496, 497, 498, 577, 580, 586, 587, 595, 598 and 001 of the the People's Republic of China Civil Code, and the Provisions of the Supreme People's Court on the Application of Article 90 of the the People's Republic of China Civil Procedure Law: 1. Dismiss PlaintiffJiao Mou MingWith the defendant Dalian Jianghuai Automobile Sales Co., Ltd.The "Automobile Product Sales Contract" signed on February 20, 2021; 2. within ten days from the date of the legal effect of the judgment, the defendant Dalian Jianghuai Automobile Sales Co., Ltd. returned double to the plaintiffJiao Mou MingDeposit$40,000. If the above-mentioned obligation to pay money is not fulfilled within the period specified in the judgment, the interest on the debt for the period of delay shall be doubled in accordance with the provisions of Article 260 of the the People's Republic of China Code of Civil Procedure. The case acceptance fee will be halved to 2330 yuan (the plaintiff has already paid in advance), which will be borne by the defendant Dalian Jianghuai Automobile Sales Co., Ltd.

During the second instance of the court, both parties did not submit new evidence.

After examination, the court confirmed the facts ascertained by the court of first instance.

The Court believes that the appellant Dalian Jianghuai Automobile Sales Co., Ltd. and the appellant.Jiao Mou MingThe "Automobile Product Sales Contract" signed on the basis of the true intention, the contract is legal and valid, and is binding on both parties, and both parties should perform as agreed. The "Automobile Product Sales Contract" involved in the case is a format contract provided by the appellant. Due to the ambiguity between the two parties in the understanding of the delivery time stipulated in the contract, the first instance judgment applies the relevant provisions of the the People's Republic of China Civil Code, and the interpretation of the appellant is unfavorable to the appellant. The applicable law is correct. Based on the available evidence, it can be determined that the appellant did not provide the appellee with the purchased vehicle within the agreed period, so the first-instance judgment found that the appellant constituted a breach of contract in the course of performing the contract, and the evidence was sufficient. Whereas the parties have expressly agreed that the appellant has delivered20,000 yuan is the deposit, so the appellee claims to apply the deposit penalty to apply for double return of the deposit.

To sum up, the appellant Dalian Jianghuai Automobile Sales Co., Ltd.'s appeal request is not sufficient, and the court does not support it; the first-instance judgment finds that the facts are clear and the applicable law is correct and should be maintained. In accordance with the first paragraph of Article 177 of the the People's Republic of China Civil Procedure Law, the judgment is as follows:

The appeal was rejected and the original sentence was upheld.

Second instance case acceptance fee4660 yuan, the appellant Dalian Jianghuai Automobile Sales Co., Ltd. has paid in advance and is borne by the appellant Dalian Jianghuai Automobile Sales Co., Ltd.

This judgment is final.

Presiding Judge Wang Huiyinghand drawn

TrialJudgersZhang Jin Ci

Judge Ma Fa-min

April 3, 2003

Clerk Li Bo