成功案例 | 为一审败诉的巴基斯坦客商取得二审完全胜利 Win in the End

【案情简介】

TQ公司为巴基斯坦客商GK在义乌开设的外资企业，一直从事与巴基斯坦等国的国际贸易业务。2018年，TQ公司的法定代表人GK经人介绍开始与俞某某等人签订了太阳能板的销售合同，之后收到的货物全部是垃圾和尖细玻璃，由此引发了贸易纠纷。2018年7月份，为解决货物质量带给TQ公司的损失，GK与俞某某签订了《保证函》和《合作协议》。协议约定：“俞某某向GK供应11个柜共12269块太阳能电池板，价值总计3373975元。GK承诺向俞某某支付1500000元，俞某某同意在杭州组装五个柜子的晶科组件作为之前台湾货物纠纷的补偿。货物到达卡拉奇港口，俞某某收到款后放提单给GK。”协议签订后，GK陆续支付款项1549950元给俞某某，但俞某某却没有履行任何合同义务，没有交付任何提单，也没有安排台湾货物质量问题的补偿给GK。GK多次要求俞某某交付提单，但俞某某一直拖延，还要求GK继续付款。

Facts：

TQ Co. is a foreign-funded enterprise opened by a Pakistani merchant who is called GK in China. It has been engaged in international trade business with Pakistan and other countries’ entities. In the first  half of 2018, TQ Co. signed an international sale contract of solar panels with Yu and others. Then the goods TQ Co. received were all garbage and sharp glass, completely inconsistent with the contract. So a dispute occurred. In July 2018, GK who was on behalf of TQ Co. signed a cooperation agreement with Yu in order to get compensation for the loss TQ Co. suffered. The agreement stipulated " Yu supplies 11 containers with 12269 solar panels to GK, with a total value of RMB3,373,975.00Yuan. GK promises to pay Yu RMB1,500,000.00 Yuan. Yu agrees to deliver the crystal components of five containers in Hangzhou as compensation for the previous loss brought by the dispute over goods.When the goods arrive at the port of Karachi, Yu shall release the bills of lading to GK after receiving the payment." After signing the agreement, GK successively paid RMB1,549,950.00 Yuan to Yu, but Yu did not fulfill any contractual obligations. Yu never delivered any bill of lading, or arranged compensation for the loss incurred by garbage and sharp glass. GK repeatedly asked Yu to deliver the bill of lading, but Yu refused and asked GK to continue to pay.

【一审阶段】

为了维护自身利益，GK决定向当地公安局经侦部门报案俞某某欺诈，但因为GK是阿富汗人，对中国的法律法规不熟悉，也未及时委托专业律师介入，报案之后公安机关一直没有立案。2019年底俞某某起诉GK，声称已经交付全部提单，要求支付剩余一百多万货款。一审判决GK按照协议约定继续支付剩余货款一百多万。

First Instance Stage：

In order to protect his legal interests, GK reported Yu’s fraud to the police station. Gk wasn’t familiar with China’s law and regulations and failed to collect evidence without entrusting a professional lawyer. The police station didn’t file a case against Yu . At the end of 2019, Yu filed a case against GK in the people’s court, stating that he had delivered all the bills of lading and asked for the payment of remaining more than one million RMB. The trial court of first instance held in favor of the plaintiff and ruled that GK should pay the remaining payment of more the one million RMB. 

【律师代理】

GK当然不服，委托智仁涉外团队提起上诉。智仁涉外团队接受委托后，详细与GK沟通，了解案件详情，并到当地公安机关了解GK之前的报案情况。在全面掌握本案情况的基础上，代理律师认为俞某某没有有效证据表明已经交付了提单，而且俞某某陈述前后不一致，明显存在虚假陈述。

Gk was not satisfied with the decision of the first instance and entrusted Zhiren lawyer to appeal. We studied this case carefully and researched all the documents of the first instance. In view of GK’s previous report to the police, we went to the police station to check whether Yu was suspected with fraud. But there was no conclusive evidence that Yu was suspected of committing a crime in this case. On the basis of fully mastering the situation of this case, we believe that Yu had no valid evidence to show that the bills of lading had been delivered. Yu's statements were inconsistent and there were obvious false statements.

【二审判决】

经过激烈的开庭审理以及与二审法官的有效沟通，针对本案中货物提单是否交付这一争议焦点，二审法院完全采纳了我方代理律师的意见，认定俞某某一审二审的陈述前后不一致，且无证据表明已经交付提单，故对俞某某的主张不予采纳。

最终，二审法院撤销了一审判决，驳回了俞某某的全部诉讼请求，自此，我方在本案中取得了完全胜利。

Decision of the Court of Second Instance：

After intense court hearing and effective communication with the judge of second instance, the court of second instance fully adopted our opinion that the other party had no evidence to show that the bills of lading had been delivered. In addition, the court found that Yu's statements in the first and second instance were inconsistent, so Yu's claim was not accepted.

Finally, the court of second instance revoked the judgment of first instance and rejected all the claims of Yu , and our party won a complete victory in this case.

【律师分析】

本案是典型的国际贸易案件，焦点问题是俞某某的提单有无交付。在国际贸易中，提单作为准物权凭证，交付提单是卖方的主要合同义务。

俞某某起诉GK要求支付剩余货款，法院支持俞某某诉讼请求的前提是他必须履行交付货物的合同义务，即在向船公司交付货物后，及时的将提单交付给买方GK。根据最高人民法院关于适用《中华人民共和国民事诉讼法》的解释第九十条的规定：“当事人对自己提出的诉讼请求所依据的事实或者反驳对方诉讼请求所依据的事实，应当提供证据加以证明，但法律另有规定的除外。在作出判决前，当事人未能提供证据或者证据不足以证明其事实主张的，由负有举证证明责任的当事人承担不利的后果。”本案中，俞某某需要举证证明他向GK交付了案涉货物的提单，履行了合同义务。但是一审法院错误分配举证责任，将未交付提单的举证责任强加给GK一方，试图让被告GK自证未收到提单，这使得原告俞某某不用举证却坐收渔利，是十分不合理的。在智仁涉外团队的努力下，二审法院纠正了举证责任分配的问题，查清了俞某某并未交付提单的事实，最终案件得以翻盘，最大限度地维护了GK的合法权益。

Lawyer’s Comments and Related Laws :

This case is a typical case of international trade dispute. The focus of debate is whether the bills of lading have been delivered. In international trade, the bill of lading is a quasi document of title. The delivery of bill of lading is the main contractual obligation of the seller. According to 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 :“If a party fails to provide evidence or the evidence is insufficient to prove the party’s factual claim before the court making a decision,the party bearing the burden of proof shall bear the unfavorable consequences.” In this case, Yu needs to proof that he delivered the bills of lading to GK and fulfilled his contractual obligations. However, without sufficient evidence, the court of first instance wrongly allocated the burden of proof, imposed the burden of proof of the undelivered bills of lading on GK, and tried to make GK prove that he had not received the bills of lading, which was without legal basis and unreasonable. With the efforts of Zhiren foreign-related lawyer team, the court of second instance corrected the mistake of the distribution of the burden of proof made by the court of first instance and found out the fact that Yu did not deliver the bills of lading at all. Finally, the court of second instance supported us and GK's legitimate rights and interests were protected.