Beijing Higher People's Court on the
"Guiding opinions on several problems of Beijing Higher People's court trial of cases of disputes over contracts of sale (for Trial Implementation)" notice
(Beijing high method[2009]43No.)

First, the second intermediate people's court, the Beijing Railway Transportation Intermediate court;
District, county people's court, the railway transportation court:
"Guiding opinions on several problems of Beijing Higher People's court trial of cases of disputes over contracts of sale (for Trial Implementation)" in2008Years12Month15The Beijing high people's court trial committee of the23Time (total227A meeting of the Executive), since the date of. Some problems of the "guiding opinions of the higher people's Court of Beijing trial of cases of disputes over contracts of sale (Trial)" and its description are issued to you, hope to organize the relevant judicial personnel to seriously study and implement. In the implementation of the notice to sum up experience, find problems, and timely report in our hospital two people court.

Two OO nine years in February 3rd

Guiding opinions of the higher people's Court of Beijing city contract cases (for Trial Implementation)
(2008Years12Month15Beijing City Committee of the Supreme Court23Meeting of the)

Catalog

Establishment and validity of a contract, the
Two, to fulfill the contract
Test three, the subject matter
Four, assume liability for breach of contract
Five, other
Six, annex
Attached: "guiding opinions on several problems of Beijing Higher People's court trial of cases of disputes over contracts of sale (Trial)" description

In order to apply "Contract law of the people's Republic of China"(hereinafter referred to asContract Law), standard of discretion, unified the scale, to facilitate the people's Court (hereinafter referred to as the court), the trial sale contract dispute cases fair justice, combined with the civil and commercial trial practice, guidance on the development of "some problems of Beijing Higher People's court trial of cases of disputes over contracts of sale (for Trial Implementation)" (hereinafter referred to as the guidance). In the trial of cases, the parties have not agreed, laws and regulations and judicial interpretation does not require or provide legal problems is not clear for guidance.

Establishment and validity of a contract, the

Article 1(action according to the contract)

There are contracts of sale of the parties reach a repayment agreement, filed a lawsuit against a party on the basis of the repayment agreement, the other effect to the contract of sale or defense in the performance, should be set to the sales contracts and disputes, the court shall be binding on the contract for the sale or perform the fact trial.

Article second(the contract)

No written contract between the parties, a party to the settlement of single, receiving note that price, on the other side. The documents signed on the identity of the objection, the court should be combined with the transaction between the parties, trading habits and relevant evidence, the existence of contract and contract the fact judgment.
The court may request the parties to submit the objection to its staff roster, payroll and other documents. The parties do not provide or provide documents is defective, shall bear the adverse consequences.
The court may, authority to tax, labor and social security departments of investigation and evidence collection.
Article third(the contract)
Reconciliation debt confirmation, confirmation letter, certificate is not recorded the name of the creditor, a party to prove the existence of sale contract and claim rights, unless there is evidence to prove that there is no sale contract or debt is fulfilled, the correspondence, documents can prove that the contract of sale.
Article fourth(contract)
To obtain ownership of the property for the subject to possible future contracts of sale, the court shall not to the seller did not obtain ownership on the grounds that the contract is null and void. The seller in the contract expires when did not obtain the ownership of the object where the subject matter was not delivered, shall bear the liability for breach of contract.

Two, to fulfill the contract

Article fifth(the subject matter delivered ahead of schedule)
The seller to deliver the subject matter, it shall notify the buyer, and the buyer who need preparation time, otherwise, the buyer may refuse to accept the object. The buyer agrees to accept the object, can advance or pay the price in accordance with the contract time.
Article Sixth(delivery was forced to take measures of subject matter)
Betray a person to control the subject matter to be mandatory measures taken by state organs, compulsory measures against the seller as a result of not delivering the subject matter, the Seller shall bear the liability for breach of contract can not be fulfilled; compulsory measures against the buyer and have paid the full price, it shall be deemed that the object has been delivered.
Article seventh(the subject matter of the risk liability)
The risk of the subject matter and by the buyer burden, the buyer can not because the subject matter is exempted from payment of the purchase price risk and duty.
The risk of the subject matter by the seller to bear the risk, subject matter, continue to fulfil the contract, the Seller shall, in accordance with the impairment degree value object relief the buyer has not yet been paid, or return to buy the corresponding price being paid; the termination of the contract, the Seller shall return the buyer the price of all people have to pay.
The subject matter of the risk, the parties to take remedial measures, or to pay the price, do not affect its due to mistakes bear the compensation liability for breach of contract.
Risks mentioned in the preceding paragraph, refer to the contract of sale, because not attributable to both parties' origin of the subject matter by the damage, loss of the situation. The risk causes include third reasons can not be unexpected events and parties cannot foresee, the.
Article eighth(determine settlement basis)
The parties agreed settlement cannot be used and not just settlement agreement, the court shall, according to the trade pattern and habits, to determine the appropriate method of settlement calculation of the contract price.
Article ninth(rolling settlement price)
The long-running transactions between the parties, but without a written contract or a framework agreement has multiple contracts or multiple performance, unless there is evidence to prove that the payment of a clear direction, the buyer to pay the price in accordance with the term of performance in order to offset the debts. The buyer shall pay interest and fees, to offset the debts shall be in accordance with the fees, interest, target price payments (principal) order.
Betray a person to advocate one or several money, the buyer to perform any of the fulfillment of the court shall, long-term buyer seller relationship of comprehensive trial.
In accordance with the provisions of the first paragraph, the period of limitation of action is recalculated from the buyer to pay the arrears of the last time.
Article tenth(determine the price negotiation, the subject of)
If the parties have not stipulated the price or the agreement to co brand price, but a party concerned or the person responsible for the contract be signed in proof of delivery record price of the amount of each other, or if one party seal, as the parties agreed on the price negotiation standard agreement.
Article eleventh(to determine the target price paragraph basis)
Target price in accordance with theContract LawArticleArticle sixty-twoArticle (two) shall determine the time of the conclusion of the contract, performance shall be the county (county-level city, district) level administrative region.
The subject matter of the market price can not be determined in the administrative area, the provisions of the preceding paragraph inside, in a jurisdiction to determine.
Article twelfth(to determine the target price paragraph)
Target price in accordance with theContract LawArticleArticle sixty-twoArticle (two) the provisions of item is still uncertain, can refer to the conclusion of the contract the place of performance target cost and average profit rate determination.
The subject matter delivered, unless one of the parties has evidence to prove that the court can not judge, because the contract does not have the price terms and is free to pay or a gift contract.
Article thirteenth(from the pleadings and defense obligation)
The seller fails to performContract LawArticleArticle one hundred and thirty-sixProvisions of the obligation, the buyer may make an independent litigation request, request the seller to perform.
The seller fails to performContract LawArticleArticle one hundred and thirty-sixObligations, to the buyer difficult or impossible to achieve the purpose of contract, the buyer shall exercise the contract to perform proper right of defense, the court shall support.

Test three, the subject matter

Article fourteenth(the quantity, the quality of the subject matter test)
Buy test the object includes the number of inspection and quality.
The buyer sign the delivery note, confirmation, shows the amount of subject matter, should be regarded as the number of people buy the object tested. The buyer sign the delivery note, that single out the object models, specifications, can not be tested as the buyer of subject matter quality, but except for a defective object external, intuitive.
Article fifteenth(potency inspection third people of the subject)
The seller according to the buyer indicating third to the delivery of the object, the third object inspection as the buyer's opinion, but the seller and the agreement between test between the buyer and the buyer and the third person contract inspection standards inconsistent except.
Article sixteenth(a reasonable period objections)
　　Contract LawArticleArticle one hundred and fifty-eightThe provisions of the second paragraph"The reasonable period", should be based on the nature, the object defects the buyer should make reasonable attention obligation between the parties, transactions, the nature of transactions, trading, trading habits, the subject matter of the installation and use, the buyer or the inspection of the specific environment, their own skills and other factors to determine reasonable. The buyer bears the burden of proof for the reasonable period.
　　Contract LawArticleArticle one hundred and fifty-eightThe provisions of the second paragraph"Two years"A reasonable period of time, is the longest.
The quality guarantee period is shorter than the parties agreed two years the longest the reasonable period, the subject matter of hidden defects present during the quality objection for the longest period of two years of reasonable.
Article seventeenth(of claim period)
The subject matter is quality, the number of claims to be made during the Convention, but did not stipulate the period for inspection and quality guarantee period, the claim period as the inspection period.
The parties also agreed period during the inspection and claim, the claim period as the quality guarantee period. The claim period shorter than the period for inspection, claim period as no agreement.
The parties also agreed period and claim the quality assurance, the claim period as during the inspection, but the claim period is longer than the quality assurance during the exception situation. During the claim period longer than the quality assurance is shorter than the limitation of action, as there is no agreement.
The parties also agreed inspection period, quality guarantee period and claim, the claim period shorter than the statute of limitations, as there is no agreement.
Application of the international practice in foreign trade, the provisions of this article shall not apply to.
Article eighteenth(a reasonable period of time notice)
　　Contract LawArticleArticle one hundred and sixty-twoRegulations"Inform"Should notice, within the agreed inspection period. No inspection period was prescribed, should notice within a reasonable period of time. Under normal circumstances, a reasonable period for sixty days.
The buyer to take custody of the refuse to accept the subject matter, the Seller shall bear the expenses for keeping the buyer subject matter, and assume non because the buyer baoguanbushan losses.
Article nineteenth(processing quality of the subject matter can not be identified)
Quality identification of professional appraisal institutions not subject matter, the court should be combined with the subject matter of the enterprise standards, industry standards, the usual standard, product brochures, expert advice, brochures, advertising, in accordance with the contract offer special standard and other reasonable factors, to object to the use of the effect to the seller commitment results as the judgment standard, to judge the evidence rules. The court not to object to carry out the quality of identification for constructive subject matter quality meet or does not comply with the contract.
In the conditions allow, the court may organize parties object using effect was the scene.
Article twentieth(quality dissent over the inspection period)
Buy period by the people more than inspection, quality problems to the subject matter refused payment of the price, the court shall not support.
The buyer exceeding the quality guarantee period orContract LawArticleArticle one hundred and fifty-eightA reasonable period of the provisions of second, with the object of quality problems by asking the seller free repair, replacement of the subject matter, the court shall not support.
The buyer malicious raised objections to the quality of the seller, shall the expenses thus incurred losses shall bear the responsibility for compensation.
Article twenty-first(quality problem solving by third people)
During the inspection, quality guarantee period orContract LawArticleArticle one hundred and fifty-eightReasonable period of clause second, the buyer makes quality objection, the Seller shall, in a proper way to solve. The seller is not in a proper way to solve, shall compensate the loss suffered by the buyer.
During the inspection, quality guarantee period orContract LawArticleArticle one hundred and fifty-eightReasonable period of clause second, the buyer fails to make the quality objection to the seller, to solve the quality problem directly by third people, the seller does not burden incurred so.
During the inspection, quality guarantee period orContract LawArticleArticle one hundred and fifty-eightThe provisions of the second paragraph in reasonable time, the seller failed to perform its obligations or in an emergency situation, the buyer must solve material quality problem by third people, the Seller shall bear the reasonable expenses incurred.
Article twenty-second(quality objection)
The buyer pays the price for the amount of arrears, confirm, using the object behavior, does not affect the standard stipulated in the contract or law within the prescribed time limit, the number of quality objection rights.
Article twenty-third(quality margin)
The quality guarantee period, the buyer shall, in accordance with the contract the seller timely refund guarantee the quality guarantee period, but in quality, the seller did not timely solve material quality problem of the subject, the buyer can not refund bond quality; the Seller agrees to the buyer to solve material quality problem targets, according to the relevant the evidence will be part of the quality of the deposit allowance standard or repair costs.
Article twenty-fourth(responsibility of quality warranty)
The buyer knows or should know the blemish of subject matter, but do not know or should know that reduce the value, utility quality defects will cause the subject matter, the seller is responsible for the quality of warranty liability.
The parties agreed to exempt or reduce the seller special subject matter quality warranty obligations, but the seller did not inform the buyer of the existence of quality defects of the subject matter, the seller should bear the quality warranty.

Four, assume liability for breach of contract

Article twenty-fifth(liquidated damages adjustment)
The parties in accordance with theContract LawArticleArticle one hundred and fourteenThe provisions of second, request for additional liquidated damages, liquidated damages shall be adjusted for other losses caused by breach of contract amount.
The parties in accordance with theContract LawArticleArticle one hundred and fourteenThe provisions of second, request to reduce the penalty, the court should respect the autonomy of the parties, the protection of honest parties, according to facilitate transactions and to maintain the transaction security principle, the agreed liquidated damages part of the loss, to reduce.
The loss of positive loss and can get profit loss. The parties to the amount of loss calculation method is not agreed, the court can be obtained by the observant party under the same conditions of interests to determine the available profit loss, or according to the principles of fairness, honesty and credit principle and the performance of the contract to determine the available profit loss. The proof of the loss of both parties shall.
If the parties fail to petition for adjustment of liquidated damages, the court did not take the initiative to adjust, but the parties to the contract is not established, the contract is not in force, the contract is invalid or no default except for exemption plea.
The parties in the procedure of first instance court interpretation does not request to adjust the default payment, request adjustment in the in the course of the second instance, the court shall not support.
Article twenty-sixth(for liquidated damages and a deposit)
The parties also agreed liquidated damages and a deposit, but not an advance nature, where a party breached the contract, the other also maintains that the deposit and liquidated damages, the court shall not support.
The parties also agreed liquidated damages and a deposit and agreed the advance nature, where a party breached the contract, the other based on the nature of the deposit agreement be breach deposit and liquidated damages, the court shall not support; where a party breached the contract, the other based on the nature of the deposit agreement together for cancellation deposit and liquidated damages, the court shall support.
Article twenty-seventh(the application of deposit and compensation for losses)
In the same suit, the parties of the deposit is insufficient to make up a party for breach losses, a party requests compensation than deposit part of the loss, the court shall support.
Article twenty-eighth(the price return and relief)
The quantity, the quality of the subject matter does not comply with the contract or legal provisions, the buyer agreed to continue to use but that the seller returned or relief part of the purchase price, the court shall support.
Article twenty-ninth(assume default responsibility)
The seller does not perform or can not perform the payment obligation, the buyer can not achieve the purpose of the contract, the buyer for cancelling the contract, the court shall support.
At the conclusion of the contract, the buyer knows or should know that the seller is unable to perform the payment obligation, the buyer shall bear liability for breach of contract.
Article thirtieth(liability for breach of contract balance)
If both parties are in breach of contract, liability for breach of contract but was not equal to the parties, the court may not request clarification, parties, the court did not take the initiative to adjust the responsibility of breach of contract parties.
Article thirty-first(default responsibility order)
　　Contract LawArticleArticle one hundred and sevenLiability for breach of contract provisions to continue to perform its obligations, to take remedial measures or compensation for losses, there is no order where applicable.
If a party fails to perform the contract obligations, shall continue to perform or compensation for the loss of the liability for breach of contract, the other can also request to continue to perform and compensate for the losses.
If a party to perform its obligations under the contract does not comply with the contract, shall be liable to take remedial measures, or to compensate for the losses of the liability for breach of contract, the other can also request to take remedial measures and compensate for the losses.
If a party to fulfill the obligations only part of the contract, shall continue to perform the,
To take remedial measures, or to compensate for the losses of the liability for breach of contract, the other can also request to continue to perform its obligations, to take remedial measures and compensate for the losses.
Article thirty-second(delay in performance of liability for breach of contract)
The contract object of delivery and payment of an order of performance, the other party to fulfill the obligations of the time delay for each other to perform his obligation shall be extended accordingly. To perform the Party advocated the overdue payment or late delivery of the subject matter the liabilities for breach of contract, the corresponding period in computing time should be deducted its delay in performance of the contract, or take other reasonable means of each other's responsibility to reduce the bear.
If the seller delays the delivery of the object but does not affect the buyer to achieve the purpose of the contract, the buyer refused to pay the price, the court shall not support.
Article thirty-third(late payment penalty)
The parties to make the payment terms change, does not affect the party a late payment penalty and liability for breach of contract, but the late payment default starting point of gold should be adjusted.
The parties have agreed late payment default payment, the buyer to seller accept the price does not advocate late payment penalty on the grounds, refused to accept payment of liquidated damages, the court shall not support.
The parties have a late payment penalty, but later on the bill, the repayment agreement, not to overdue payment responsibility, the seller on the basis of the bill or claim arrears repayment agreement, according to the contract that late payment default payment, the court shall support.
If the parties have not stipulated late payment method to calculate the default payment, late payment penalty amount may refer to the provisions of the people's Bank of China financial institutions overdue loan interest rates the standard calculation.
If the parties have not stipulated late payment default payment, the seller should the buyer default file for late payment default payment, the court will not support, but the seller to loan interest as the standard that loss, the court shall support.
Article thirty-fourth(the late payment responsibility)
The seller is not prompt timely cheque, cheque over to prompt payment period cannot be redeemed, the buyer shall not bear the liability for breach of contract during the overdue payment, but the seller has evidence to prove that due to causes of the buyer even prompt payment not received except the price.
Late payment default payment can be from the seller to the buyer once again due date or to continue the calculation.
Article thirty-fifth(refused to provide after sale service)
The buyer is not in accordance with the provisions of the contract or legal provisions to pay the price, the seller refused to provide after sale service for the buyer, the court shall support, but according to the agreed contract or business practices, industry rules, the Seller shall provide after sale service except when.
If the seller refuses to provide after sale service, and buy the extent of breach of contract by the appropriate.

Five, other

Article thirty-sixth(sale by sample contract)
The exclusion of all samples to guarantee the quality of the subject matter in the contract, not a sale by sample.
The parties may agree to exclude certain quality of samples, but excluded quality should be non main, does not affect the subject matter of the utility or purpose of the contract.
Quality standard is not consistent with the sample quality but the difference was slight, does not affect the buyer the contract to achieve the purpose, or not in violation of the trading habits between the parties, or the subject matter delivered conform to the contract for the standard, the seller does not assume the quality warranty.
Article thirty-seventh(trial sale contract)
With the contract of sale, the parties have not stipulated fees or the agreement is not clear, in accordance with theContract LawArticleArticle sixty-oneThe provisions can not be identified, the buyer does not pay the royalties.
The buyer did not agree to buy the trial object means that the seller can not reach, the seller make another meaning. The seller to request the return of the subject matter, but the buyer refused to return, as the buyer agrees to buy.
Article thirty-eighth(range of contract for the sale of the right of defense and counterclaim)
Betray a person to perform the obligation of delivery, for the buyer to pay the price, the buyer to the seller default first defense, the court should hear different circumstances:
(a) the buyer refused to pay the price, do not agree to pay liquidated damages or compensation for losses, or that the seller should be taken to reduce the price of remedial measures, belong to the exercise of the right to defence;
(two) the buyer the Seller shall pay the liquidated damages, damages or to terminate the contract, it shall file a counterclaim or resolved through other v.;
(three) the buyer to the seller default for defense, but not explicitly claim, the court may to the buyer for the interpretation, a clear idea of the.
Article thirty-ninth(change right parties and revocation)
Existing contract between the parties, a party to the bill, clearing single, the repayment agreement, confirmation of the amount of error is brought change, action, or defense, the court should hear different circumstances:
(a) before the contract dispute litigation, a party filed suit should change, change of lawsuit trial;
(two) the sales contracts and disputes in the lawsuit, filed the lawsuit party change, should be heard together with the payment claim. One of the parties separately bring a change of lawsuit, litigation of payment in the first trial procedure, change action into the action of performance, action of performance in the procedure of second instance or have tried at the end, change action does not support;
(three) the sales contracts and disputes procedure, if a party fails to initiate change action, but the bills, statements, such as the amount of the repayment agreement confirmed by defense, which belongs to the examination of evidence and fact finding problems.
Article fortieth(decision of acceleration problems)
The seller has to perform all the obligation of delivery, the agreed payment period has not expired, but the seller for the buyer to pay the price without expires, if there is conclusive evidence that any of the following circumstances, the court may order the payment acceleration, but the buyer has been mentioned except for appropriate security:
(a) the buyer fails to perform the payment obligation clear price;
(two) the buyer has its business license revoked, cancelled, revoked or by the relevant authorities in a state of suspension;
(three) the buyer to transfer property, withdrawal of funds, to avoid debt;
(four) the buyer loses the commercial reputation;
(five) the buyer by their actions that do not fulfil the obligations of other payment.
The court of First Instance judgement without acceleration, trial of second instance court payment period expires, the court of second instance shall directly to.
Article forty-first(proof of invoice)
The buyer to VAT invoice defense has to perform the payment obligation but not recognized by the seller, the buyer shall provide evidence of the existence of the facts of payment.
The buyer to other commercial invoice defense has to perform the payment obligation, the court shall support, unless the seller has evidence to prove that the buyer fails to pay the price.
The provisions of this article shall not apply to foreign trade.
Article forty-second(to determine the relevant documents and data range)
　　Contract LawArticleArticle one hundred and thirty-sixOther relevant documents and materials required documents to take delivery of the object, usually including insurance, warranty, packing list, product certification, quality assurance, expert opinion, commercial invoice, certificate of origin, inspection certificate, instructions, quality products inspection certificate etc..
　　Contract LawArticleArticle one hundred and forty-sevenThe relevant regulations of the documents or materials, including the provisions of the preceding paragraph, the documents and materials, and bill of lading, warehouse receipts, property rights certificate certificate etc..

Six, annex

Article forty-third(scope of guidance)
This guidance issued since the date of implementation.
The specific provisions of this directive opinion and new laws, regulations and judicial interpretations inconsistent, not to implement the relevant provisions of this guidance.
　　Contract LawAfter the implementation of contract dispute case, after the implementation of the guidance is not final, the applicability of this guidance; the guidance which is the party applying retrial, or decide to retrial according to the procedure of judicial supervision, do not apply this guidance.

"Guiding opinions on several problems of Beijing Higher People's court trial of cases of disputes over contracts of sale (Trial)" description

In the "contract of saleContract law of the people's Republic of China"(hereinafter referred to asContract LawProvisions of the contract) the first, also the most detailed provisions, the adjudication of disputes in the principles and criteria need to follow to often also be other famous contract by reference. In recent years, the city's three commercial court court of contract cases each year are more than million, accounted for 1/5 of all cases, far higher than other types of economic disputes. Therefore, the quality of the trial contract cases, the commercial trial work play a decisive role.
In order to further summarize and explore the trial of cases of disputes over a contract for the sale of the experience and ideas, standardize people's Court (hereinafter referred to as the court) discretion, unified sale contract dispute cases the referee scale, self2006Years, the Beijing Municipal Higher People's Court (hereinafter referred to as the Beijing High Court) two people court specialized collegial panel, responsibility for the special investigation on contract cases.2008Years, the Beijing High Court established the vice president Zhu Jiang as the group responsible person, to2005Years-2007The annual sale contract dispute cases of second instance,2007Apply the ordinary procedure of first instance as the final year of the contract for the sale of disputes, as well as the Beijing high court trial supervision tribunal since2001Years of re trial sale contract dispute case, a total of500Judgment and pieces of cases are analyzed, at the same time to strengthen the work of grass-roots court investigation supervision and online collection of problems, the understanding and operation of the common problems, summary of the problems are classified and summarized. On this basis, screening the law does not provide, or legal provisions are not clear, or there are provisions in the law but not the problem, the formation of "guiding opinions of the higher people's Court of Beijing city contract cases (for Trial Implementation)" (hereinafter referred to as the guidance).
In the guiding opinions from draft to draft the guidance issued a formal process, we held several seminars, including the Beijing high court two people court court meeting and full court seminar, the Beijing first intermediate people's court jurisdiction court seminar, Beijing second intermediate people's Court of jurisdiction court seminar, experts in experts civil law supreme court justice Wang Chuang, Peking University professor Liu Kaixiang, Tsinghua University professor Cui Jianyuan, Professor Zhang Xinbao of Renmin University, eventually on trial sale contract disputes are common, and solution ideas more clearly, accurately grasp the problem, clearly classify.2008Years12Month15Day, guidance by the Beijing high court trial committee of the23Time (total227Time) is discussed by the conference. Understanding and application of the guiding opinions of specific provisions as follows:

Understanding and application of Article 1: the repayment agreement is established in the sale contract basis, although the seller has the right to claim the rights according to the repayment agreement, the prosecution case from the self, such as creditor's rights dispute (debt disputes), but if the buyer in the case of the trial to fulfill the contract of sale the fact of defense, and even the the effectiveness of contract for the sale of such problems, try the repayment agreement, contract to fulfill the basic problems of facts and effect cannot be identified and determined, the final is not helpful to solve the contradictions and disputes, is not conducive to discover the truth. Therefore, starting from the actual effect of dispute, when the buyer on the sale of the validity of the contract or the performance of the fact of a defense, not the repayment agreement independent of the contract of sale and tried separately, but carries on the adjustment to the prosecution case, the validity of the contract and fulfill the fact trial identification. Of note, the validity of the contract and fulfill the fact trial, does not deny the repayment agreement, the repayment agreement should be important evidence for the fulfillment of the contract; if the repayment agreement contains legal invalid acts have illegal interest, the court should be to identify and handle.

Understanding and application of article second: such disputes are common in construction site building materials supermarket distribution, logistics distribution and hotel food source material distribution, door-to-door delivery, but does not rule out the buyer from the case. Because there is no written contract, it is easy to cause disputes, the parties are usually not recognized the signer is its staff, or not recognized sign person have the right to represent its signature. According to the"Who advocates, who bears the burden of proof"The rules of evidence, there is sale contract that party shall bear the burden of proof, but it is often a contract relationship in a vulnerable side, can manifest as to clearing single, signature certification, unable to further proof, it seems as long as the other simple denial signature can be pushed over the claim (negative facts without proof). In order to solve this contradiction, this article considers no written contract signed, people often change, as well as on the weak side appropriate protection situation, one is that the denial to proof, two is the proof is not blindly insist that the rights of one party, and is asking the court to proceed from reality, combined with the transaction between the parties, the transaction practices and the proof ability difference, the delivery man can submit additional evidence (including indirect evidence), for example a apparent evidence, to analyze and judge. When necessary, the court can also according to the authority for adducing evidence objection or court. Need to pay attention to is, the form requirements from goods receipt of and extent of the examination should be more than door-to-door strictly.

Understanding and application of article third: reconciliation confirmation, creditor's rights confirmation is a kind of creditor's rights, the creditor does not bear the name (without looking up), does not affect the authenticity of the contents, namely the people in debt issued by the fact that. From the analysis of normal logic, if there is no evidence that the CDO is illegal, holders of debt obligations is the lawful possession. At the same time, have determined the debtor shall pay off a debt to who, the existence of creditor's rights transfer situation, did not affect the debtor the burden of debt burden of fact and. So that the creditor's rights holder is the creditor or as creditors, there is nothing wrong. This facilitates the transaction order and stability, promote market circulation. Note that, if a party concerned claims CDO is each other of illegally acquired, shall bear the burden of proof.

Understanding and application of article fourth of the contract: the object shall belong to the seller is entitled to dispose of all or,Contract LawArticleArticle fifty-one, No.Article one hundred and thirty-two, No.Article one hundred and fiftyHave made clear. The guidance andContract LawThe regulations are not contradictory. Because in a market economy, the sale of a wide variety of goods, the sale of a variety of ways, is to buy low and sell high is a common form of modern trade. The provisions of this article relating to the case, is common in the genus trading activities, such as the conclusion of the sales contracts, the seller did not goods, according to the contract of sale agreed conditions, their home as the buyer to the procurement of goods, and then sold to the buyer, to profit or profit. Therefore, in order to get the ownership of the property for sale contract future matter, can be accomplished, not necessarily have no ownership or right of disposition and disposition of the property of others. This article focuses on the contract expires this point in time, before the seller at this point in time to obtain the ownership of the subject matter or disposition can, and do not have to be at the conclusion of the contract the only point in time. If the time of performance the seller did not obtain the ownership of the subject matter or disposition but punishment subject matter, belong toContract LawArticleArticle fifty-one, No.Article one hundred and thirty-two, No.Article one hundred and fiftyIssues concerning adjustment.

Understandings and applications for fifth:Contract LawArticleArticle seventy-oneThe first paragraph: the obligee may reject the obligor's early performance, except where such early performance does not harm the interests of the creditors. This guidance is the concrete operation problem solving the above provisions in the contract of sale. The seller to deliver the subject matter isContract LawThe rights conferred, because after all changed the performance of the contract agreed by the parties, so to the interests of the buyers, which does not damage does not increase their burden as the premise. Therefore, whether to support the seller to deliver the subject matter, we must first consider the protection of the interests of the buyer issues. Prior notice to the buyer and given the time required for preparation, both for the buyer to accept the subject matter of the preparatory work, in order to give full play to the subject matter of the utility, also bought rights by the people of the. Also, because the seller unilaterally changed the contract agreed by the parties, so if the relationship to the buyer pays the price for the period of interest is paid in advance, or in accordance with the original contract time to pay the price, choose the right should belong to the buyer.

Understanding and application of article sixth: if the delivery of the object, the core problem relating to the ownership of the object and subject matter of risk burden in the sale contract. The first case the provisions of this article is easy to understand and grasp. The key is the second case, the compulsory measures is the buyer and have paid the full price of the circumstances, direct provision"The subject matter is deemed to have been delivered", and does not give the seller the option. Because if you give the seller can choose the subject matter is delivered or not delivered, the state has taken enforcement measures of the subject matter belong to the seller or the buyer in a state of uncertainty, both may and mandatory measures taken in contradiction, also makes the performance of sales contract or cannot determine a final, the new dispute or controversy. But this guidance attention has been paid to the problem of the protection seller, the buyer has paid the full price of the situation, just as the subject matter delivered, so there is no fault of the seller will not suffer losses of compulsory measures.

Understanding and application of article seventh: burden of object risk is one of the core problems of contract of sale, on the risk responsibility should also pay attention to. The guidance of responsibility sharing provisions, define the concept of what is the risk of the subject matter. Although the risk is not attributable to the buyer, but the subject matter of the loss will eventually have a specific subject. In the contract of sale, usually around the payment, exemption, refund problems such as game after risk, so the risk burden the guidance to the subject has been identified as the premise, and to distinguish boundaries, are provided. Note that the risk itself, though both parties have no fault, but if one of the parties in the risk occurs at the same time, also have their own fault, and then produce a loss, further expand such as did not take the appropriate measures to prevent the losses, shall be liable for any loss thus incurred.

Understanding and application of article eighth: the guidance by reference of the disputes in construction materials such as stone, concrete settlement, etc., may be due to the design drawings, building materials, the same amount of additional changes in material supply of different people, building materials consumption could not be recovered and other reasons, the parties agreed on settlement on the basis of not admissible, and fail to reach a supplementary agreement on the settlement, therefore refuse referee in can not be the case, the court should trade pattern and habits (where trading habits do not emphasize is between the parties, including: trade behavior in local or a field, an industry and a usually used as the transaction object contract know and accepted practice; both parties habits often used practice. For the trading habits, by claims that a party shall bear the burden of proof), or according to the assessment results, or according to the completion drawings, or according to the can be used as evidence of the documents, comply with the principles of fairness and good faith, to determine the suitable method of settlement calculation of both parties to the contract price.

Understanding and application of article ninth: this guidance is to solve the multi transaction between parties performing the confused situation, there are two kinds of sales situation which the guidance, a long-lasting business relationship between the parties, but no written contract; the two is the existence of a framework agreement between the parties, subsequently signed a number of contracts or multiple performance. Note that, if there is no framework agreement, but the existence of multiple independent contract, in the event of mixed while performing the fact, can not be applied to the guidance, which may be too complex, guidance not exhausted solution. The guidance from the perspective of solving to protect creditors (but not absolute, in some cases, the opinion of the disadvantageous), provides for the repayment order, and not enough to pay off all the debts of the offset sequence. The seller only advocate one or some money and the buyer on the performance of objection, the court should not reimbursement fact separate trial, and should undertake comprehensive trial to ascertain the facts. The guidance of third on the limitation of action according to the Supreme Court. "The provisions on several issues of limitations applicable to civil cases litigation trial"ArticleArticle fiveRule (the parties agreed the phased implementation of the same debt, the period of limitation of action to calculate a discharge from the last expiry date), the first paragraph scenarios that involve owed as a debt, the performance as a whole, this to the protection function for the majority of creditors.

Understanding and application of article tenth: the underlying price is not agreed circumstances, can according to the priceContract LawArticleArticle sixty-oneAnd the articleArticle sixty-twoBe determined, but a prerequisite, i.e."Fail to reach a supplementary agreement". The provision of guidance"One of the parties in the delivery document records the price"The situation, should offer as a supplementary agreement price terms;"Each other in proof of delivery signed or stamped"The situation, should be regarded as the price agreement supplementary commitment, so both parties reach a supplementary agreement. Similarly, the parties agreed to co brand price clause in the contract, when no other value consensus of evidence, the case shall be regarded as the parties reach a supplementary agreement. Need to pay attention to is, considering the importance of the price agreed in the contract of sale, the guidance from the balance the interests of both parties, emphasizing the sign it, must be signed by a party or the person in charge of contract managers in proof of delivery of the sign.

Understandings and applications for eleventh:Contract LawArticleArticle sixty-twoArticle (two) requirement: the price or remuneration is not clear, according to the conclusion of the contract to perform the market price performance; according to the implementation of government pricing or government guidance prices shall, in accordance with the provisions of. In the clear target price to determine the way at the same time, there are"At the conclusion of the contract performance"Needs to be determined, which relates to the performance to determine the target price payments, this guidance is provided to solve the problem of. In practice, some subject matter of the sale is restricted circulation, or liquidity is poor, so according to the instructions first cannot determine the target price, in the upper level administrative region are determined, push. If the object belongs to only one or some area, the price can refer to the regional price only or the most relevant regional price determination.

Understandings and applications for twelfth:Contract LawArticleArticle sixty-twoArticle (two) requirement: the price or remuneration is not clear, according to the conclusion of the contract to perform the market price performance; according to the implementation of government pricing or government guidance prices shall, in accordance with the provisions of. But the subject matter if not to circulate on the market, there is no market price; and not all objects have the government fixed price or market price, price guide issued by the government pricing or government of the subject matter, it is minority after all. In this case, the subject matter of the price in accordance with theContract LawArticleArticle sixty-twoArticle (two) the provisions of item is still not sure. Considering the general subject matter of the sale has a cost accounting and the average rate of profit (in the absence of the same kind of object can be used for reference, according to the most similar principle to determine the reference, and then determine the cost, the average rate of profit) problem. Cost and average profit rate of the most basic elements as commodity prices constitute, are relatively easy to determine the reference value,.
In general, the court may determine the names of the parties, subject matter and quantity (three element in the establishment of contract), shall be deemed as contract, unless otherwise provided by law or agreed by the parties. The other content of the contract (including the lack of price terms), the parties fail to reach an agreement, the court shall, in accordance with theContract LawArticleArticle sixty-one, No.Article sixty-twoAnd other relevant provisions to be determined. At the same time, starting from the special voluntary contract, that the contract should be strictly voluntary contract.

Understanding and application of article thirteenth: theory is generally believed that, from the payment obligation refers to the type of contract does not decide, do not have independent significance, in order to make the interests of creditors get the maximum extent to meet the obligations. From the payment obligation can be based on the law, the parties, can also be based on the principle of honesty and credit or supplementary agreement interpretation and. Creditors of the subordinate obligation can perform independent appeal. Starting from the concept of,Contract LawArticleArticle one hundred and thirty-sixRegulations"The Seller shall, in accordance with the contract or transaction practices, deliver to the buyer to extract relevant documents and materials other than the subject matter of the documents"From the payment obligation, should belong to the category, and from the payment obligation is independent of the file. At the same time, from the payment obligation is relative to the principal contract obligations (refers to contract between the inherent, essential, and can determine the basic obligation of contract of relation type),"From the"Doesn't mean it's not important, will also affect the purpose of the contract (i.e. the target party in pursuit of the conclusion of the contract and the realization of basic interests), when the obligation and the contract is closely related to the purpose, will produce the same contract defenses, such as the right to plea of simultaneous performance counterplea, advance performance. But if one of the parties exercise the counterpleaing right degree to be appropriate, and breach of the obligation of the corresponding to the extent.

Understanding and application of article fourteenth: in the trial practice, due to the number of the subject matter of the dispute is less, after all, the number of test is more convenient, test conditions, test period is easy to grasp the quality inspection. So the delivery confirmation number, which, as a rule of thumb, the buyer sign, should point to the number of nuclear. The fabric is divided into surface defects and hidden defects, surface defects is refers to, in the normal way (i.e., no special inspection) can find flaws. Hidden defect refers to, need to undertake technical appraisement of necessary or after installation and operation to find flaws. Because the defect degree of quality difference, it should be differentiated to hidden defects and surface defects inspection requirements. The quality problem of the subject matter, which belongs to the external surface defects, the parties generally do the duty of reasonable care, can be found.

Understanding and application of article fifteenth: exercise test compulsory inspection man should not be limited to the buyer and the agent. In the contract of sale the seller directly to the outside of the third performance of the circumstances, if the contract of sale the parties have not expressly agreed to the buyer is the only inspection the circumstances, the buyer indicating accept the object third object quality inspection opinions should be on the buyer binding. Considering the complexity of the relationship between people and the possibility for third people and between special agreement, the guidance and the exceptions, i.e."Between the seller and buyer, buyer and the third person contract inspection standards inconsistent except".

Understandings and applications for sixteenth:Contract LawArticleArticle one hundred and fifty-eightThe provisions of the second paragraph"The reasonable period"Is very elastic, in judicial practice it is difficult to grasp. Owing to the characteristics of the subject matter of the contract and its flaw diverse kinds of categories, this guidance can not make a unified, clear"Date"Provisions, there is relative standard. Therefore"The reasonable period"Determination, only by the judge in the longest within a reasonable period of time, according to the different types and defect of subject matter, including the nature of defects, under normal circumstances, the buyer reasonable attention obligation may find considering time and the flaws in the specific environment and other factors, and in these constraints, determine by right of discretion. But the basic principle is that, during the inspection notice surface defects should be short, including the quantity, variety, specifications, models, appearance, color etc.. The buyer notice period properties, the majority view is scheduled period, because in accordance withContract LawArticleABaiwushiqi strip, No.Article one hundred and fifty-eightRegulations, quantity or quality of the buyer not benchmarking in the agreed period of fabric inspection and to the seller fails to perform the obligation of notification that the loss of the subject matter, the quantity or quality of the right to dissent and to put forward the corresponding guaranty flaw the seller is a subject, the subject matter delivered by the seller even if the facts do not comply with the contract is deemed to be in compliance with the convention. The buyer of the statutory rights, characteristics and lost during the passing and legal characteristics of the scheduled period except.

Understanding and application of article seventeenth: the guidance problem is, if the contract of sale has been the subject matter quality, the number of claims within the time limit agreed to clear, the buyer would have to put in a claim in the claim period agreed, and not suitable for two years of litigation orContract LawArticleArticle one hundred and fifty-eightThe second paragraph"Two years"Period? The guidance given: one is the period of limitation of action is the statutory period party claims rights, the parties can not be changed by agreement, so it cannot claim during the agreement by the parties is restricted within the statutory period. The two is to consider the claim quality during the inspection period, and the period of guarantee interlinked in the function, effect, during the agreed conflict, should be straightened out. This guidance distinguish several cases, modifications, the center is in the parties and the conflict of legal rights, straighten or deny the agreement of the parties, in order to protect the legal rights of the parties are not infringed upon.

Understandings and applications for eighteenth:Contract LawArticleArticle one hundred and sixty-twoRegulation: the seller to pay more of the subject matter, the buyer may accept or refuse to accept the excess part. The buyer receives the excess part, to pay the price in accordance with the contract price; the buyer refuses to accept the excess part, it shall timely notify the seller. This involves the"Timely"Understand and grasp, and the understanding and application of the guiding opinions on sixteenth similar, it also depends on the judge in the restriction down basic principles, factors of discretion, according to the actual situation of a case to determine"The reasonable period". Considering that the buyer rejects the seller multiple delivery of the subject matter, quantity problems instead of quality problems, will therefore"The reasonable period"For sixty days, and pointed out that it is the general practice, also as the special cases of the space.
The subject matter delivered is different, and the subject matter no agent in place of delivery situation, the subject matter has been in a state of neglect in law. At this time, the buyer should bear the kind of duty, the method can be free to decide custody, can keep their own, can also place the subject matter in deposit or auction, sale (fresh, perishable object). Storage should be safe and low cost, storage cost is borne by the seller. The auction or sale, after deduction of the relevant expenses and losses, the buyer shall pay the seller promptly returned.

Understanding and application of the premise: Nineteenth application of this guidance is"Quality identification of professional appraisal institutions not subject matter". In order to solve the quality issue has been at an impasse, the court can not refuse referee question, the guiding opinions on theContract LawArticleArticle one hundred and fifty-three"The seller provides quality specifications for the subject matter, the subject matter delivered shall comply with the quality requirements"The provisions of the subject matter, the quality is up to the standard list of evaluation factors. "Civil procedure of the people's Republic of ChinaLitigation Law"ArticleArticle seventy-threeThe provisions of the first paragraph,"Material evidence or the scene, the inspector must produce the court documents, and invite the local basic organization or the in."The court conduct inquest, except in accordance with theThe Civil Procedure LawThe above provisions, can reduce the disputes in the process of the organization should be the parties to participate in the. Whether the court of on-site inspection, inspection ability depends on the difficulty and their own, for example on the basis of common sense, after a simple test can draw a conclusion, should carry on the inspection of the scene.

Understandings and applications for twentieth:Contract LawArticleArticle one hundred and fifty-sevenProvisions of the buyer's inspection obligations, i.e."The Buyer upon receipt of the subject matter shall, within the agreed inspection period. No inspection period was prescribed, shall timely inspect."No inspection during the contract or regulations, although the buyer will not bear the legal responsibility, but will make the buyer loses part of its rights and interests of the number of defects, time limit, quality defects that the buyer can no longer on the subject matter existing legal relief, so the buyer due to quality problems exercise plea should be tested during the period of limitation; at the same time, during the inspection found no subject matter existing quantity and quality problems, is usually the buyer pays the price for the conditions. So during more than inspection, the buyer can no longer subject matter quality problems refused to pay the price. Similarly, from the quality assurance of the purpose and role during the quality guarantee period, the seller in the subject matter still bears the responsibility of warranty, the buyer still enjoy quality objection, may request the seller free repair, replacement of the subject matter, the subject matter to achieve the desired effect. In the quality guarantee period, the buyer loses the corresponding period benefits, shall not require the seller free repair, replacement of the subject matter, unless otherwise agreed between the parties. The subject matter of quality problems arise, the seller to provide after sale services, will have the corresponding repair costs, so if the buyer is not integrity, malicious raised objections to the quality, thus incurred shall be borne by the buyer as.

Understanding and application of article twenty-first: in the contract of sale, the seller has a number of quality in accordance with the contract, the delivery of the object is compulsory, and delivery of the subject matter for the warranty liability. Corresponding with this is, when the quantity, the quality of the subject matter does not meet the requirements, the buyer shall notify the seller in the provisions of the contract or legal time, otherwise it will lose the request the seller to supplement the quantity or charged with violating the quality warranty rights. If the buyer in the provisions of the contract or legal notice of the seller, the Seller shall take appropriate means to resolve quality problems, because it belongs to the seller for the delivery of the subject matter for the warranty liability, the guidance so clear. If the seller fails to properly resolved in a timely manner, to the buyer suffers such as shutdown, shutdown and loss, the Seller shall compensate; if for reasons of the seller or in case of emergency, such as vehicle quality problems arise in the implementation of urgent tasks, the buyer must be solved through the third person, belong to the necessary cost reasonable the guarantee period, because it is in the quality stipulated in the contract or law, the related costs shall be borne by the seller burden. Conversely, if the quality problems can be solved without notice to the seller the seller or his agent, the buyer thus incurred is not reasonable expenses, should be considered to give up rights can be enjoyed for its, it shall be responsible for repair, replacement of the subject matter and the occurrence of expenses.

Understanding and application of article twenty-second of the contract amount:,, when the quality of the subject matter does not conform to the agreement in the contract, the buyer shall objection in the provisions of the contract or legal time. The quality objection to notify the seller, the buyer's obligation is not only, also contains the rights of the buyer, the seller may request to take against the quantity or quality warranty rights. The exercise of the buyer subject matter quantity, quality objection to the right, depending on the contract or law of quality objection period regulation, and the buyer pays the price behavior performance, confirm the amount of arrears, the use of the subject matter of contract, the relationship is not either this or that; the buyer receives the subject matter, to pay the price, confirm the amount of arrears, the use of the subject matter and other acts of protest of quantity and quality, there is no relationship between antecedents and consequences, the rights and obligations are advocated and performance. Therefore, not because the buyer is to pay the price, confirm the amount of arrears, using the object behavior, and that the abandoned object number, quality objection rights.

Understanding and application of article twenty-third: quality margin is a specific way the seller subject matter bear the responsibility of quality warranty, the seller as part of the purchase price is guaranteed in the agreed period, repair, replacement according to the buyer's request to the subject matter, the subject matter to ensure conformity with the agreed quality. In practice, the quality guarantee deposit as part of the price will also exist in the tail section of the form. This guidance is provided according to the nature of the quality margin. While considering the quality is closely related to the margin and quality assurance, and the quality guarantee period is the period, should not because the subject matter is the repair, replacement or prolonged interruption. So the quality guarantee period, the buyer shall promptly return the quality guarantee of the seller. Otherwise, the quality of refund of deposits time may be due to the subject matter of the constant repair, replacement and can not be guaranteed, causing another unfair in terms of interests.

Understanding and application of article twenty-fourth: in the contract of sale, the seller has delivered according to the agreed quality object obligation, and the delivery of the subject-matter flaw guarantee.Contract LawArticleArticle one hundred and fifty-three, No.Article one hundred and fifty-fourIt provides the subject matter delivered by the seller must comply with the contract, and in accordance with the seller subject matter quality description. But in the buyer already knows or ought to know the defects of the subject matter of the case, whether the seller is responsible for the quality of the subject matter of warranty liability? Because the seller object quality warranty liability is one of the core obligations stipulated by law, therefore, cannot because of the agreement of the parties, the seller or the buyer knows that easily excluded. This guidance lists two cases were stipulated, in order to facilitate the concrete operation in practice. As for the quality defects, in general, should include the reduction in value, decreases the general utility or pre contract effectiveness, ensure quality defect defect (i.e., the object does not have the Seller guarantees of quality).

Understanding and application of article twenty-fifth: Court liquidated damages adjustment to the parties, is a common and difficult problems in judicial practice.Contract LawArticleArticle one hundred and fourteenSecond paragraph: the agreed liquidated damages are lower than the losses caused, the parties may request the court or an arbitration institution to increase; the agreed liquidated damages is excessively higher than the losses caused, the parties may request the court or an arbitration institution to make an appropriate reduction. On the loss calculation,Contract LawArticleArticle one hundred and thirteenThe first made provisions, i.e."The amount of compensation for losses shall be equal to the losses caused by the breach of contract, including contract can gain, but shall not exceed the party in breach the contract was foreseen or breach of contract may result in losses should have been foreseen by the."This guidance discussion process, had tried to get the default adjustment of gold to make a definite proportion of provisions, such as the Supreme Court "On the trial of the sale of commercial housingSome problems of contract dispute cases the interpretation of applicable law"ArticleArticle sixteenThe provisions of the contract, but because of the diversity and various business differ in thousands of ways, just sort of a few principles, when applicable, need to these basic principle as the premise, concrete analysis of concrete problems. This article emphasizes the guidance"Too much higher than"This premise, and"Appropriate reduction"The criteria of judgment, which is also the party autonomy is a kind of respect, because both parties are expected to have a basic default consequences, but also with a certain amount of punitive damages, so the adjustment should also be limited adjustments. The calculation of losses, positive loss better grasp and calculation, is to reduce the observant party existing assets, including expenditure. As for the possible benefits, is consistent with the performance benefits, looking forward to the benefit of the meaning of the contract is performed, if the other party, based on contract can enjoy, and because the breach, return so that it can not enjoy in fact trading. Generally speaking, to determine the basic starting point can get benefit is Shouyuefang losses based on (net profit) rather than the default party gains; must adhere to the principle of honesty and credit, considering the actual situation of the observant party itself, including profitability, the objective conditions. The party in breach of the predictable standards, can the normal of the seller or the buyer business judgment standard, namely normal seller or caused by breach of contract damages the buyer reasonably foreseeable to should be in the understanding of the special circumstances of the parties after the consequences. At the same time, the party in breach of the factors, the party in breach of the identity of particular practical understanding degree, the observant party identity, the subject matter of the nature and purpose of the observant party pays the price, how much the foreseeable rules should be paid attention in application.
This guidance fourth consideration is both parties claim and defense advocates in the direction of the inconsistency, which is one of the parties claim arrears, the other is fundamentally negative (there are recognized legal relationship is mainly), according to a verdict, in two during the first request to adjust the penalty. The provisions of this paragraph is to the court of second instance specific circumstances in a specific analysis to leave space.

Understanding and application of article twenty-sixth of this guidance is toContract LawArticleArticle one hundred and sixteenExplicit provisions.Contract LawArticleArticle one hundred and sixteenRequirements: both parties breach, and a deposit, when one party violates the contract, the other party may choose to apply the provisions of default payment or deposit. So.Contract LawJust give the suitable choice of default payment or deposit terms, if the parties also claim damages and deposit, of course not supported.Contract LawArticleArticle one hundred and fifteenThe parties may in accordance with provisions: "Guaranty Law of the people's Republic"Agreed to give a deposit to the other party as a secured creditor. After the debtor performs his obligation, the deposit shall be offset against the price or refunded. Pay a deposit of one party fails to perform the agreed debt, have no right to demand the return of the deposit; receive advance party of the non fulfilment of contractual obligations, should be double the return of deposit. Supreme CourtSeveral issues concerning the application of the "PRC security law" interpretationArticleArticle one hundred and seventeenRules: advance after delivery, the delivery of the deposit to a party in accordance with the contract to the loss of deposit at the expense of the main contract, receive advance party could double the return of deposit at the expense of the main contract. To handle the responsibilities of the main contract, applicable "Contract law of the people's Republic of ChinaRegulations. Visible, the deposit is one of the way to guarantee, the guarantee function is reflected in the contract, performance, termination process, different types of deposit function, different. According to the specific properties of deposit, the deposit usually consists of covenant deposit, deposit, or evidence deposit, penalty for breach of contract and cancellation deposit. But the covenant deposit (there is a separate deposit contract, to ensure that the principal contract signed thereafter), the contract guarantee fund (contract or the execution of the attached conditions), evidence deposit (ensure fulfillment of the contract, and breach of such similar) is the main academic classification, is rare in judicial practice in the theoretical concept, but are also not uniform. At the same time, covenant deposit and gold are set in the contract agreed upon or before the entry into force of the provisions of this article shall not apply, the guidance of the contract has been in force; evidence agreed with the default properties are the same. Therefore, this guidance does not specify the form of deposit, only practice visible Breach Deposit, cancellation deposit were distinguished, regulations. For breach of deposit and liquidated damages in the objective, nature, function and so on is basically the same, so the two can not be used, but by the observant party choice. According to the "Guaranty Law of the people's Republic"Interpretation of several issues in ChapterArticle one hundred and seventeenProvisions, parties can deposit for the cost of termination of the contract, regardless of whether the contract constitutes a breach of contract, so the cancellation deposit and liquidated damages in the objective, nature, function and so on are different, the two can also be used.

Understanding and application of article twenty-seventh: according to theContract LawArticleArticle one hundred and sixteenRegulations, deposit is secured creditor. Pay a deposit of one party fails to perform the agreed debt, to request the return of deposits, receive advance party of the non fulfilment of contractual obligations, should be double the return of deposit. The compensation for the losses is a party in breach of the legal consequences.Contract LawArticleArticle one hundred and sevenRules: if a party fails to perform the contract or its performance of the contractual obligations is not in conformity with the agreement, shall be liable to continue to perform its obligations, to take remedial measures or compensate for the losses and liability for breach of contract. Rule 112nd: if a party fails to perform the contract or its performance of the contractual obligations is not in conformity with the agreement, to take remedial measures after the performance of obligations or, other losses, shall compensate for the losses. Visible, the deposit penalties with no actual loss as the premise, the deposit liability cannot substitute for damages, therefore in the deposit is insufficient to compensate Shouyuefang actual losses, two should can also be used, but the deposit and the loss of the amount of compensation for breach of contract should not be higher than the sum of losses caused by breach of contract, nature is no longer distinguish deposit (Breach Deposit or cancellation deposit). Stress the importance of the same action, taking into account the performance of the contract is the same, pay a deposit and compensation for the losses have been implicated; but from the reduce v.tired and easy to ascertain the facts point of view, should also be addressed in a lawsuit.

Understandings and applications for twenty-eighth:Contract LawArticleArticle one hundred and sevenRules: if a party fails to perform the contract or its performance of the contractual obligations is not in conformity with the agreement, shall be liable to continue to perform its obligations, to take remedial measures or compensate for the losses and liability for breach of contract. Rule 111st: quality does not comply with the contract, it shall bear the liability for breach of contract in accordance with the agreement of the parties. Liability for breach of contract is not agreed or the agreement is not clear, nor can it be determined in accordance with the provisions of this Law in article sixty-first, the aggrieved party according to the nature of the subject matter and the degree of loss, reasonably choose to request the other party to bear the repair, replacement, return, redo, reduce the liability for breach of contract price or remuneration. In this article provided guidance situation, as the party in breach of the seller to buy part of the purchase price paid by the person, or reduction of part of the price the buyer does not pay, is the"To take remedial measures"To undertake the specific forms of liability for breach of contract; at the same time, the buyer is a legal remedy, is reasonable; and from the trial result, support compliance buyer claim or for people, more conducive to the value of the subject matter, the utility of the embodiment, avoid the waste of social wealth, not breach of contract against the seller the rights and interests of the people.

Understandings and applications for twenty-ninth:Contract LawArticleArticle ninety-fourArticle (four) regulations,"If a party delays performing the debt or other breach of contract and can not achieve the purpose of the contract"The, the parties may rescind the contract. Although encouraging tradeContract LawOne of the principles, but whether the seller is not fulfilling the main obligations under the contract, or does not fulfill the contract obligations as long as the resulting from the buyer, the purpose of the contract can not be achieved, the pursuit of that at the conclusion of the contract, obtain the use value and exchange value economic objectives can not be achieved, the seller constitutes a fundamental breach of contract, the Seller shall have the right to on the basis ofContract LawArticleArticle ninety-fourArticle (four) the provisions of item to terminate the contract. But the buyer knows or should know that the seller cannot perform the payment obligation is still a contract, although the buyer has the right to terminate the contract, but the contract should bear the liability for breach of contract, because it has the obvious fault, shall bear the corresponding liability.

Understanding and application of article thirtieth: contract embodies the party's autonomy, freedom of contract isContract LawOne of the principle of. Even if the court in the trial of cases of disputes over a contract for the sale of both parties, think about the liability for breach of contract, agreement was not equal, also belongs to the basisContract LawArticleArticle fifty-fourProvisions, need to request under the premise of the parties, the court may change or revoke the case of default, the court did not take the initiative to adjust the default clause, or in violation of the contract freedom principle and Party autonomy. If gold is too high or too low of breach of contract, and breach of facts have occurred, the parties can be based onContract LawArticleArticle one hundred and fourteenRequests the court to adjust the provisions of. The court during the trial, if the parties agreed significant imbalance in the liabilities for breach of contract, the parties can make interpretation, as the party's attitude determines whether to adjust.

Understandings and applications for thirty-first:Contract LawArticleArticle one hundred and sevenEnumeration defines three parties bear the liability for breach of contract, is the relationship between the parallel and not progressive, therefore the parties can choose according to the actual situation of the contract liability for breach of contract in the three way to bear, so the court in the concrete application, should not be defined sequence, and should be determined according to the specific choice of the parties.Contract LawArticleArticle one hundred and twelveRules: if a party fails to perform the contract or its performance of the contractual obligations is not in conformity with the agreement, to take remedial measures after the performance of obligations or, other losses, shall compensate for the losses. Visible, according toContract LawArticleOne hundred and twelveArticleRegulations, are not exempt continue to fulfill the responsibility, the parties may choose one, two or even three default responsibility according to the actual situation of the contract. In general, the default behavior is not to perform the contract, the contract does not comply with the contract and partial performance of three cases. Therefore, the instructions corresponding to the fulfillment of the contract three basic situation and differences of default, respectively, how to apply the three kinds of liability for breach of contract made detailed provisions. Because it may also reflect does not fulfill the contract obligations and to fulfill the contract obligations is not in conformity with the agreed two default feature part performance, so the three kinds of liability for breach of contract form can also be.

Understandings and applications for thirty-second:Contract LawArticleArticle sixty-sevenRegulation: the parties are in debt, there is an order of performance, prior to performance by a party is entitled to reject its requirement for performance. If the other party performance does not conform to the contract, after the implementation of a party is entitled to reject its requirement for performance. Exercise the counterpleaing right to perform it contains the term interests, whether the other party is to deliver the subject matter or the price to pay. Therefore, to perform the obligation of a party delays performing the obligation, the other party to fulfill the obligation of time should be postponed. On this premise, in extended period does not exist the so-called late payment or late delivery of the subject matter of the problem, not to produce the corresponding liability for breach of contract. BasisContract LawArticleArticle ninety-fourArticle (four) the provisions of item, only a party delays the performance of the contract as a result of objective cannot be achieved, the other side has the right to terminate the contract, and the guidance provided for in the second paragraph of circumstances don't belong to the statutory conditions of rescission. Continue to perform the contract, the buyer pays the price for the contract, not breach. As for the seller to deliver the subject matter of the consequences of delay, the buyer may claim the responsibility of breach of contract.

Understanding and application of article thirty-third: payment terms agreed and liability for breach of contract agreement is part of the sale contract, payment of liquidated damages belongs to the category of liability for breach of the provisions, is about the liability for breach, breach of conditions of calculation method. Liability for breach of contract (late payment penalty clause) main contact and payment term is payment (to perform its obligations under the contract) the next day deadline, late payment penalty calculation"Be overdue"The starting point. As an integral part of the contract, payment terms and overdue payment default payment default liability provisions can exist independently, their changes are part of the terms and conditions of the contract change, effect will not affect other terms, namely the payment terms change will not make the parties undertake responsibility of breach of contract, breach of contract if the payment method changed, destroy, but the liability for breach of contract achievement time points (overdue payment of the starting point) will change. At the same time, the parties to accept the price and give up that late payment penalty no causal relationship, to identify the right to give up rights cannot be presumed finished; and the other party claims the other bear the liability for breach of contract as a kind of right, should be reflected by the obligee's ostensive behavior.
The bill is the parties to a contract for the sale to confirm and record, not the repayment agreement, can not be ruled out selling contract traded for a late payment default payment responsibility contract claim, unless otherwise agreed between the parties. Late payment penalty as a default payment, should be agreed upon by the parties based on, or the seller can only be based onContract LawArticleArticle one hundred and seven, No.Article one hundred and twelve, No.Article one hundred and thirteenRegulations, advocate legal liability for breach of contract. If the parties have not agreed on the liability for breach of contract, the seller by buyer default losses, according to theContract LawProvisions, the seller may claim damages the interest standard. Specific calculation standard, overdue payment period of less than a year, according to the people's Bank of China semiannual period prescribed (six months) loss calculation lending rates; overdue loan period longer than one year, the losses in accordance with the one-year lending rate. It also reflects and agreed to the late payment penalty, but does not stipulate the specific calculation method in the calculation of the level of interest rates, the loss amount difference.

Understanding and application of article thirty-fourth: "The negotiable instruments law of the people's Republic of China"ArticleArticle ninety-oneThe first paragraph: the holder shall present the cheque for payment within ten days from the date of issue; different checks, the time limit for presentment for payment shall be formulated by the people's Bank of Chinese. The buyer has to check, shall be deemed to have fulfilled his obligation to pay the price. The seller is not prompt payment, so that more than check presentment for payment term, can not be the responsibility of the seller. Therefore, the seller will not prompt payment of a record amount, advocate until once again to the buyer to exercise the right to claim for payment after the period of the late payment default payment, and should not be supported. But if the seller has evidence to prove that the buyer is lip-service delivery check, or check the existence of the defects in the object, leading to the seller prompt payment can not realize the price of equity, the buyer shall still bear the late payment default responsibility.

Understanding and application of article thirty-fifth: refusing to provide after sale service is actually the legitimacy of right of defence exercise. Business contract is a typical contract, the buyer in accordance with the contract or legal provisions of payment, is the core obligations. The buyer pays the price for the corresponding rights obligations including the Seller shall provide after sale service (because of the existence of price), which implicated between pay the price and provide after sale service. The buyer shall pay the price in the circumstances, if it has failed to fulfill its obligations, are not performed its main obligation, in accordance with theContract LawArticleArticle sixty-sevenProvisions, the seller can exercise the counterpleaing right to refuse to provide the corresponding services, customer service, to urge the buyer to fulfill their obligations. If there is a special agreement the parties to the after sale service, such as the seller in any case to provide after sale service in a timely manner, or starting from the principle of honesty and credit, in accordance with the relating to the subject matter of business practices, industry rules, the Seller shall provide after sale service, the Seller shall not refuse. At the same time, the seller refused to provide after sale service, to adapt to buy extent of breach of contract by the people, if the buyer fails to pay the price is only the payment or just a small part, the seller should not be refused to provide after sale service.

Understanding and application of article thirty-sixth: according to theContract LawArticleArticle one hundred and sixty-nineProvisions, the seller to deliver the subject matter in accordance with the requirements of the quality of the sample, is the most basic sample sale by contract obligations. The parties shall in the contract of sale made it clear that the contract is the sale by sample contract, such as a clear agreement"To determine the subject matter of the quality of the sample","Sales by sample","The quality of the subject matter delivered by the seller must be consistent with the sample"Etc.. If the parties eliminates all sample quality guarantee, losing the special elements of the sample, sale by sample, impossible, it does not constitute a sale by sample contract. According to theContract LawArticleArticle one hundred and sixty-nineProvisions, the seller in accordance with the sample quality of the subject matter existing hidden flaws still bear the liability for warranty against defects. However, the subject matter delivered quality and sample quality difference is obviously minor, whether the seller so bear the responsibility of quality warranty, should put into consideration, in order to fully reflect the value of the subject matter, usually to the purpose of the contract, the parties to the transaction habits, whether the object of conform to the contract a as the consideration of conditions, determine the seller should take the quality warranty.

Understanding and application of article thirty-seventh: trial sale contract, contract of sale is also called test, the parties agreed in the contract, the seller will sell the subject matter to the buyer the trial, the buyer after the trial recognized subject matter for the conditions of the contract of sale. After the establishment of the contract, the buyer may object to conduct a trial, after the trial, the buyer of subject matter content, the fulfillment of the conditions, effect of contract; otherwise, the contract is not in force.Contract LawArticleArticle one hundred and seventy, No.Article one hundred and seventy-oneDuring the trial, the trial sale contract to buy provisions. The buyer expressly refused to buy the subject matter during the trial period, sale contract between the rights and obligations of the parties does not occur between the parties, but the buyer is required to pay fees? If there is no agreement to use fee or the agreement is not clear, in accordance with theContract LawArticleArticle sixty-oneThe provisions can not be identified, from the special nature of sale by trial--The seller undertakes to buy risk was not approved, the buyer should not pay to use. The buyer is not to buy the object means, which can be written, can also be oral or behavior, but is not implied. According to theContract LawArticleArticle one hundred and seventy-oneShall, upon the expiration of the period of use, the buyer whether or not to buy the object fails to express, as the purchase. If the buyer unconditional payment of all or part of the price, or have the object for use outside the trial, is a vigorous, behavior showed that the purchase intention, it shall be deemed that the buyer agrees to buy.

Understanding and application of article thirty-eighth: in the trial practice, the defendant in the lawsuit claims what belongs to the right of defense or claim (counter), difference is bigger, which is directly related to the problem of enforcement and protection of right of litigants, involved in this guidance problem is typical. The basic idea is, in general, the buyer's defense or claim if there is a benefit contents, which belongs to the right of claim, counterclaim or the other should by resolution, but demands the termination of the contract is an exception. Reduce the price a defense or claim although payment, but the seller is in that an offset price on, do not have the benefit of new content, so it should be treated as the content of the right of defense. As for the court of the second instance trial, unity of thinking, to straighten out the relationship between the parties and defense, the buyer only in breach of defense, but not a specific claims, the court of first instance best thereon to the buyer. The guidelines stipulate is"Sure", is given to the individual may appear in concrete cases, and the judge scale normal elasticity problems.

Understanding and application of article thirty-ninth: contract cases, often see the parties according to the contract or the defense of bill, clearing single, claim or repayment agreement. The guidance from the parties can basisContract LawArticleArticle fifty-fourRequest for change or cancellation of the provisions of bills, statements, the repayment agreement problem formulation. The basic idea is, to fulfill the contract of sale, the parties signed the statement, statement or the repayment agreement, whether or not just buying and selling in the legal relationship of a fact or a link, are related to the specific interests of the parties, a party according to theContract LawArticleArticle fifty-fourTo bring a separate changing or canceling the appeal, withThe Civil Procedure LawArticleArticle one hundred and eightThe provisions on the admissibility of the case. So the combination of several cases in trial practice, taking into account the close contact with the change and action of the sale of legal relations, even is not divisible, according to two kind of lawsuit has, to distinguish between different situations of provisions.

Understanding and application of article fortieth: the starting point of this guidance is to urge the integrity of the seller to the preservation of the evidence, to obtain the effective protection of rights. Payment term has not yet expired includes all price has not yet expired, also including the installment is not all due. The guidance from theContract LawArticleArticle sixty-eightFirst, theArticle sixty-nine, No.Article ninety-fourArticle (two), No.Article one hundred and eightThe system of anticipatory breach of contract provisions, and the unsafe right of defense system combining, inContract LawArticleArticle one hundred and sixty-sevenOn the basis of the provisions were added. The parties may accelerate maturity in loan contract; case acceleration statutory bankruptcy of the debtor, the debtor including liquidation etc.. The provisions of this guidance"The buyer license was revoked by the departments concerned, revocation, cancellation, in a state of suspension"Situation, specific performance is a serious deterioration of the operation, if the buyer is the liquidation work in cancelled, revoked, will not produce the acceleration problem. The court of second instance acceleration due to a certain extent, can avoid the parties v.tired, stabilize the market order, and may affect the lower court commuted rate, can be resolved through internal management system of court.

Understanding and application of article forty-first: "Invoice management measures of the people's Republic of China"ArticleArticle threeRequirements: invoice is the payment party to perform the payment obligation certificates. "Second rules" provisions of the use of special VAT invoices: special invoice, VAT general taxpayers selling goods or providing taxable services invoice, purchase payment of value added tax and in accordance with the relevant provisions of value-added tax according to the VAT amount of deduction certificates. In judicial practice, the seller is a common first invoice, after payment of the price situation (mainly is the value-added tax invoices), find out the payment that is difficult. Taking into account theInvoice management measuresClearly defined"The invoice is the payment party to perform the payment obligation certificates"Therefore, to open the invoice payment does not accord with the general rule of invoice management, the buyer to the seller of a payment request invoice defense, the seller must have evidence to prove its master Zhang founded. But for the value-added tax invoices, it should be treated differently, because the main function of the VAT invoice is the ticket with the goods, the tax deduction, not directly as the paying party to perform the payment obligation certificate, need further evidence to prove that the buyer has paid the price. Considering the foreign-related invoice and the invoice management are different, so the provisions of this article shall not apply to foreign trade.

Understanding and application of article forty-second: determine the relevant documents and materials to the range of ownership transfer, from the payment obligation etc..Contract LawArticleArticle one hundred and thirty-fiveRegulation: the Seller shall perform the documents to take delivery of the object to deliver to the buyer the goods or, and to transfer the ownership of the object of compulsory. Rule 136th: the Seller shall be in accordance with the contract or transaction practices, deliver to the buyer to extract relevant documents and materials other than the subject matter of the documents. Rule 147th: the seller in accordance with the agreement relating to the subject matter does not deliver the documents and materials, does not affect the subject-matter damage, the risk of loss of the transfer. The guidance from the trial practice, the subject matter of the documents and materials are enumerated, with convenient operation. The list of range"Etc.", should be"Etc."Understand. The parties have not agreed in the contract, should be combined with transactions, trading habits and practices of the industry to determine. This article first with guidance from the payment obligation is closely related to the second paragraph, bear with the transfer of ownership, risk.

Understanding and application of article forty-third: on the scope of application of this guidance, the preface of this guidance and the provisions of this article shall be understanding, execution, in order to reflect the current, future laws and regulations, judicial interpretation and judgment of the authority, the parties autonomy respect, promote the unification of the referee scale. Of note, this guidance is more from the perspective of traditional contract disputes, although the basic principles are applicable to all contracts of sale, but for such as housing property disputes, ownership rights disputes, foreign-related contract disputes, we should give full consideration to the nature of the dispute and the legal relationship particularity, the relevant laws and regulations and judicial interpretation, to correctly understand and apply this guidance.