Note: This article is based on the pay Xiye lawyers in a heavy industry enterprise legal training course content arrangement and.

In recent years, along with our country's level of industrial automation, large-scale machinery and equipment (large production line, testing equipment, engineering machinery and equipment) is widely used in various fields, especially in the society, space, infrastructure construction, industrial equipment, food processing industries, high-end equipment hundreds of millions.

Different from the traditional industrial products, large machinery and equipment is usually not in a workshop is formed once, still need to be installed, commissioning, acceptance, training and other aspects before delivery of products. Any part of the problem may be caused by equipment can not be normal use, caused directly or indirectly huge loss to the user, resulting in both product quality disputes. This is a large equipment manufacturers and purchasing enterprises often face and most worried about.

    I hereby binding agent of many large mechanical equipment disputes, legal practice involved in such disputes are stated, to seek for advice and generous.

Mentioned, this kind of litigation

Such action occurred in the sales contracts, the contract for work. This procedure has a strange phenomenon, many brought by the passive "counter" approach. Shenzhen Baoan District people's court had trial sale contract quality dispute case doing research confirms this phenomenon.

I think the reason, the buyer does not active to quality defects that bring a separate lawsuit mainly: 1, the current transaction is a buyer's market, usually the first payment after delivery or performance to pay part of the purchase price way, the buyer usually with a small amount of money in return for large mechanical equipment possession, found the quality defect, the refusal of payment and the possession of the subject matter in a way to protect their interests, at the same time and the seller consultation for matters concerned; 2, product quality defects slight or no flaws, the seller is not money, once the prosecution, to advocate quality defects counterclaim means malicious delay action, in order to delay or reduce the payment of the price objective.

The lawsuit is mainly directed against the seller (producer) default (including product quality responsibility), claims: the lifting of the sales contracts, the return and compensation for economic losses (or default); in a limited period of time according to the contract agreement (qualified equipment related technical information or other accessories), and bear the liability for breach of contract perform equipment maintenance free; compulsory, and compensate for the losses.

There are some litigation is filed by the seller (producer), is mainly directed against the Purchaser fails to payment by some. The claim: immediate payment, and compensation for economic losses (or default); the lifting of the sales contracts, the return and compensation for economic losses (or default). This procedure will often lead to the buyer to quality defects for reasons of counterclaim request for compensation.

     Two, under the jurisdiction of such disputes

Given the performance of large mechanical equipment for the buyer's location, at the same time, special advantage based on buyer's market, the seller and the buyer to establish jurisdiction court for the seat of the court in the contract. So, this kind of lawsuit by the buyer in court.

But in practice, because the court case is usually not the terms of the contract as a substantial review, there have been some seller by the court to submit false materials or other concealment of jurisdiction clauses way "for" the jurisdiction of the court case, the first step of jurisdiction dispute often become a case against the.

Of course, there are some cases are both not agreed jurisdiction court, the seller (the Contractor) to processing contract dispute proceedings, and processing behavior for the performance of the contract "fight" to the local court jurisdiction.

Three, quality inspection or appraisal is the key procedure

Quality disputes of large-scale machinery and equipment, in the final analysis to the quality inspection or appraisal, namely the independent third party authority to make identification of quality. Court for inspection or appraisal conclusion as liability basis.

In the process of the case, I found that there are some mistakes on product quality inspection and identification, including some judges, the judicial personnel and business management personnel.

(a) inspection and identification of quality is different in meaning

"Product quality arbitration inspection and product quality authentication management approach" (hereinafter referred to as the "measures", note: the measures by the State Bureau of quality and Technical Supervision issued) the provisions of article third "product quality arbitration inspection refers to the product quality and technology supervision department at or above the provincial level or its authorized departments qualified product quality inspection agency, authorized inspection of the product range according to the applicant's request in appraisal department, to inspect the quality dispute products, process inspection report issued by the arbitration."

    Article fourth stipulates: "the product quality authentication refers to the identification of quality and technical supervision organization designated administrative department at or above the provincial level units, according to the applicant's request, organize experts with controversial quality products were investigated, analysis, judgment, process quality appraisal report issued".

From the above two provisions of view, identification of the quality of products have four characteristics:

(1) only at or above the provincial level administrative departments of quality and technology supervision acceptable quality appraisal application, product quality appraisal work by the administrative departments of quality and technology supervision at the provincial level or above the specified Identification Organization implementation.

Of course, in the judicial practice, quality identification is mainly based on the identification of whether the agency has the identification of qualification, is not restricted to designated administrative department at or above the provincial level of quality and technical supervision units.

(2) "the product quality appraisal method" is a controversial products, quality identification, no controversial products such as: new product identification, batch production of identification of the quality of products, new technologies and new methods of identification and the administrative departments of quality and technology supervision in law enforcement, investigate and deal with product quality identification "approach", do not belong to the scope of.

(3) identify the quality of the products of is already used for a certain period of time, some have been damaged, some faults, and some have been partially or completely lost the use of performance. Because of the influence of the quality of the products is affected by external environment, installation method, using a variety of factors such as product quality, will be identified directly with the standard, the requirements of the contract were compared, just as with a new standard to test an old product even waste products quality, the results can be imagined. That is to say, in accordance with the production (factory) test of standard or the standard stipulated in the contract, the inspection results to judge, is qualified, unqualified products is not correct.

Therefore, when disputes occur in the product quality, product quality is the key identification test diagnosis is not simple.

(4) identification of the quality of products is the identification of the quality of the products, not to produce quality responsibility. That is to say, the identification process, without investigation and analysis of products have quality problems is the responsibility of who is responsible for which party, should be, just identification products have quality problem, the problem is caused by what reason. As regards the liability issues, and ultimately by the court.

Of course, in the process of product quality authentication will also relates to product inspection, such as "means" twenty-ninth "quality identification needs to do the inspection or testing, expert group shall comply with the conditions of selection mechanism, and the certificate of inspection or test report." However, these tests or test report for the expert group on the identification of the quality of the products was analyzed using, rather than directly to the products under the appraisal conclusion.

Thus, the core product quality evaluation is to a fault (dispute) make analysis, judgment, not just the product of the status quo (such as the on-site inspection, the equipment can not be normal use) or according to the standard stipulated in the contract, to detect the product is simple (judgment of qualified and unqualified). The court should make the identification or inspection of the product needs to make a clear judgment, not only by qualified unqualified conclusion is to define the responsibility of the parties, otherwise it may cause the error in judgment. Replace the appraisal conclusion to test the conclusion of practice, will seriously damage the legitimate rights and interests of the seller. But as is often the case, need to cause enterprises attach great importance to.

(two) determine the inspection or appraisal according to the different cases

Because of the large mechanical equipment usually has the characteristics of complicated structure, repair and strong, repeated debugging. The quality problem identification or inspection shall make the phase distinction.

The 1 stage: inspection, acceptance

In view of the stage equipment has not yet been put into production, the equivalent of the traditional products of the "new" products, the dispute, may entrust the inspection agency in accordance with the relevant standards, technical agreement (enterprise standard, landmark, standard, GB) for inspection, determine the responsibility of both the reference test results, without the need for quality identification.

However, it should be noted that, should give the seller a reasonable time limit for inspection before debugging, and the test results is not to determine the responsibility of both the final basis.

At the same time, in view of the characteristics of this kind of equipment repair and strong, repeated debugging, but also integrated into the quality defects are important, whether or not can or should not repair and other factors to determine the responsibility of both sides. As a result of a test failed to pass that equipment failure, then decision return to compensate for the losses, is a huge waste of social resources, it will seriously damage the producers of the production of enthusiasm.

For example: automatic production line quality dispute in Fengning County of Hebei Province, a building materials limited company and Shanghai City Machinery Co Ltd sand aerated concrete block in the case, by the quality problems of the production line mould box equipment, leading to the output of the product defective rate is higher, not up to the industry standard. The relevant departments did not fail to present to the product makes the simple return, but allow the latter through technological improvements (replacing module) to reach the standard stipulated in the contract. Although the latter because of delay in delivery of giving economic compensation to the former must, but huge losses compared to return brings is very little.

2,Use: identification

In the use of process quality problems, in the warranty period of non due to improper use, the Seller shall be responsible for free repair and replacement parts. Occurs at this stage of the proceedings, is due to damage to the equipment, the high cost of repair, but the seller does not recognize the device itself quality caused by.

Occurs at this stage of the procedure, usually requires the identification mechanism of the fault reasons for the analysis, judgement, decide whether to use installation reasons, quality of product itself reason is caused by the improper.

(three) quality appraisal (inspection) link with 

     Generally speaking, identification of quality in product quality cases (test) is an essential part of. In this section, some parties concerned identification (test) results against themselves, often do not fit or negative confrontation appraisal (inspection) behavior, such as less maintenance, intentionally blocked access to the site, and even in the equipment to do some "hands and feet", make the appraisal (inspection) can not be carried out smoothly.

The above behavior once the court found, the legal consequences of the courts often ordered the parties bear the burden of proof can not, may make adverse responsibilities of the parties identified. It is suggested that: in order to clarify the responsibilities, the parties should retain good quality appraisal (inspection) the sample "(the device), or even ahead of some of the evidence preservation, such as photography, video, avoid each other to do some" hands on the device".

For example, in Zhanjiang city in a Food Company Limited (hereinafter referred to as "food company") and Shanghai Machinery Manufacturing Co., Ltd. (hereinafter referred to as the "machinery") quality dispute case,The Shanghai first intermediate people's court, from machinery company (the seller) to food company (the buyer) delivery system for equipment, to the authentication institution for equipment identification of time more than a year, the Department for equipment in charge of food company under without reasonable, effective maintenance during this period, the transmission part corrosion phenomenon, affect the start-up of the equipment, to judge cannot on sealing quality and production capacity to implement the detection, the consequences shall be borne by the food company. (Note: the court found that the buyer is unable to prove the quality of products)

     The qualification of the four, the loss of benefits

Can get profit loss is the product quality disputes in a common pursuit. The court will be what is of concern that, many enterprises.

According to the "contract law" provisions of article 113rd, if a party fails to perform the contract or its performance of the contractual obligations is not in conformity with the contract, thereby causing loss to the other party, the amount of compensation for losses shall be equal to the losses caused by the breach of contract, including contract can obtain benefits (benefits can be), but not exceeding the breach of contract we conclude the contract was foreseen or breach of contract may result in losses should have been foreseen by the.

On the other, according to the Supreme People's court "about the current situation of the trial of civil and commercial contract dispute cases a number of issues guidance", the court will usually determine the damages according to the nature of the transaction, the factors of the purpose of the contract, the production equipment of breach of contract, breach of contract because of the seller and the buyer can cause loss of benefits usually belong to the production and loss of profits.

In the calculation and determination can get profit loss, and the comprehensive application of predictable rules, the rule of mitigation, the rule and the rule of contributory negligence, the non defaulting Party advocated the benefits can be deducted by parties not foreseeable losses, the non breaching party improperly broadening of the loss, the non breaching party caused by by default the benefits, the non defaulting party has fault loss and the necessary transaction cost.

The party in breach shall be liable as general did not take reasonable mitigation measures and resulted in the loss of expanding, the non breaching Fang Yin default and benefit as well as non breaching party has the burden of proof of negligence of the non defaulting party; the non breaching party shall bear the burden of proof of transaction cost from the loss of anticipated benefits, the total amount of necessary. For the foreseeable losses, either the non breaching party to provide evidence, the people's court may also, according to the specific circumstances of discretion.

To sum up, the quality of large equipment in the lawsuit, the court for damages that will consider many factors and rules, causality, both default and damage on both sides of the fault degree and so on matters, a final compensation amount.

    Five, return scheme selection

Return is the most reluctant to accept, unless the court returned or equipment quality problems serious enough to retire. And the buyer, the return is not necessarily the best choice, re purchase may affect the production schedule, mounting and dismounting may affect the design workshop, or even cause greater economic losses to themselves. So, even if the lawsuit, the parties should consider to litigation request, not to retreat.

In addition, as the seller, once order or mediation return, should choose to return program, such as: safe by the court sealed in a timely manner and inventory of equipment and spare parts, to be removed after refund of payment for goods, avoid the buyer after payment is received stonewalled the demolition equipment.

I encountered a similar thing, the buyer against the mediation agreement, the demolition of containment equipment, the seller to pay a heavy price, finally in the court's participation to equipment demolition work is completed.