SOUTHWEST UNIVERSITY OF POLITICAL SCIENCE AND LAW
TAKE-HOME
Final Examination--- 2004 -2005 学年第 一 学期
Cover Sheet
|
Course Title:
|
Case Study on International Trade Law
(Former Course Title: International Financial Law)
|
|
Course No. and Section:
|
|
|
Professor:
|
Wang Heng
|
|
Time Allowed:
|
24 Hours
|
|
Materials Allowed:
|
Open Book
|
Please indicate whether students are limited to a specific number of pages. Any other specific instructions can be indicated here.
Examination Rules. Please READ carefully.
1. There are three cases for you to analyze and some relevant questions to answer in this examination. The relative value of each question is stated in each case.
2. With the exceptions stated in these instructions, this is an open-book examination. Thus, you may use any materials, but there is no reason for you to consult anything other than the materials we used in class.
3. You may work on this examination for any consecutive 24-hour period between June 28 and June 29.
4. You may NOT discuss or have communication about the examination or your answers with any other person once you have begun the examination until the end of the exam period. This prohibition includes phone conversations, face-to-face conversations, e-mails, eye winks, head nodding, or any other form of communication. For instance, asking the question “Have you finished this exam yet?” or answering such a question would be considered a violation of this Rule. This prohibition covers communications with all persons, whether or not they are students at the Law School. I will treat violation of this Rule as cheating.
5. You need not retain or submit any notes that are not part of your final answer. You will, of course, only receive credit for what you submit at the end of the examination.
6. WORD LIMIT: THE ANSWERS TO YOUR EXAMINATION MAY NOT EXCEED A TOTAL OF 3000 WORDS. THIS IS THE TOTAL NUMBER OF WORDS FOR THE ENTIRE EXAM, NOT FOR EACH QUESTION. I WILL DEDUCT SUBSTANTIAL POINTS FROM YOUR ANSWER IF YOU EXCEED THE 3000 WORD LIMIT. You should be able to complete your exam with fewer words and should not feel compelled to reach the limit.
Good luck!
$$分页$$
I
案例分析题
( 1/3 of the exam)
请阅读以下案例，并回答问题
Ryoden Lift & Escalator Company Limited V.China Everbright Bank, Shenzhen Branch
HIGH PEOPLE’S COURT OF GUANGDONG PROVINCE
CHINA
(2002)YHC4F No.96
2002
Facts:
Appellant, Ryoden Lift & Escalator Company Limited (hereinafter referred to as “RC”), taking exception to the Civil Judgment (Ref.2001 SICE2O 108) rendered by the Intermediate People’s Court of Shenzhen on a dispute of L/C, versus appellee, China Everbright Bank, Shenzhen Branch (hereinafter referred to as “EBank”), lodged an appeal with this court. This court set up a collegiate bench to take up the cases and has now finalized the case.
On August 6th, 2001, the appellant, RC, brought an appeal to the original court, stating: on April 20th, 1998, based on the application of the applicant for the credit, SHENZHEN XINWANG INDUSTRIAL & COMMERCIAL DEVELOPMENT CO., LTD (hereinafter referred to as “XWC”) and UCP500, EB opened an irrepealable sight L/C with RC as the beneficiary. When RC negotiated this L/C, EB held that the bill had some discrepancies, however, during the process that EB decided to hold the bill and wait for the direction, it was not based on the regulations of UCP500 to strictly fulfill its obligations of noticing the applicant for the credit and consulting the applicant’s opinions. EB did not notice the applicant and ask the applicant to waive the discrepancies, but allowed the beneficiary to change the discrepancies. It intentionally made the beneficiary miss the 15-day-period of time for presentation of document, which occurred the new discrepancy of “late for presentation of document”. Again, during the process of keeping the bill and waiting for the disposition, EB waved aside the direction, waiving the discrepancies, of the applicant, XWC, and refused to base on the regulations of UCP500 to fulfill the paying obligation under items of the L/C, which led to the situation that up to now, the beneficiary, RC, had not got the sum of money and incurred great economic losses. Thereby, ask the court to order EB to pay the sum of money, 5,160,000HKD, under the terms of the L/C, the interest of deferring payment, 821,076.00HKD, and pay fees of this case in accordance with law.
Through the trail, the court found that: on March 31st, 1998, RC signed a Sales Contract of Lift & Elevator with XWC. The contract agreed that: RC sole to XWC eight passenger-service- elevators of MITSUBISHI ELECTRIC, controlled by computers; the payment for goods were totally 6,880,000HKD and XWC paid the subscription, 10% of all the payment, by itself; the balance of 90% of the payment, counting for 6,192,000HKD, would be paid by XWC through the irrepealable sight L/C issued by EB. After signing the contract, EB, as the issuing bank, issued the irrepealable sight L/C (No. EBSZ98LC0104) on April 20th, 1998: the applicant of this L/C was XWC; the beneficiary was RC; the payment for cargoes was 6,192,000HKD, paid in three times, separately as part A 5,160,000HKD, part B 963,200HKD and part C 68,800HKD. The bills for negotiation that stated in the L/C are: 1. Two copies of original commercial invoices which have been signed and give clear indication of number of the L/C, name of the facture and the number of the contract, 1521-8054; 2. The whole set clear maritime bill of loading, which the goods have already been loaded, with the title of the issuing bank and clear indication that “freight paid” and the numbers of the L/C and the contract through “CHINA GUANGAO DEVELOPMENT GROUP IMP AND EXP CO OF 18／F.，SHANRONG BLDG.，JINSHA EAST ROAD，SHANTOU，CHINA(Tele：0754-8160080)”; 3. Two original copies of packing list, giving clear indication of quantity and the gross weight, net weight and packing of every box; 4. One original copy of insurance policy or credence, in which the amount insurance is 110% of the sum of the invoice and clear indication that the place of compensation is China, the way of paying is money of BE which endorsed blankly by the policy holder and the risks of insurance are Comprehensive Freight Risk (full insurance), War Risk (on freight) and Strikes Risk (on freight); 5. One original certificate of quantity issued by the commodity-manufacturing unit; 6. One original certificate of quality issued by the commodity-manufacturing unit; 7. One original certificate of producing area issued by the commodity-manufacturing unit; 8. A fax, which is faxed to the applicant within 48 hours after loading and has been confirmed by the beneficiary, notifying name of the ship, date of loading, quantity, weight and worth of cargoes and giving clear indication of numbers of the L/C, the B/L and the invoice. Additional conditions of negotiating the L/C are: 1. The P.O. with EB as the payer; 2. Any discrepancy that has been found in any set of documents, the beneficiary needs to pay the fee, 50USD, for the discrepancy and the fee will be deducted while balance every set of documents; 3. Documents must be submitted through the bank within 15days and the period of validity after forwarding; 4. The applicant and the beneficiary of the L/C will pay 10% of the invoice through other means.
$$分页$$
After issuing the L/C and seven-time modifying, the last agreed date of the L/C is July 13th, 1999; the effective cutoff time is January 25th, 2001; the dead line of the shipping is August 10th, 1999; the conditions of delivering the cargoes and the delivery place are “CIF Shenzhen, China”. Item 1 of the negotiating bill has been changed to: “following documents and the D/D of 5,160,000.00HKD, issued by the beneficiary, attached”; Item 2 has been changed to: “the whole set undertake carrying documents with blank title, which is issued by the shipper, indicating that the freight has been paid and noticing the applicant of the L/C.” Item 4 has been changed to: “the insured amount is 7,568,000.00HKD on Comprehensive Land Transportation Risk, War Risk and Strike Risk”; Item 8 “delete the name of the ship and the number of the B/L”. Then, RC shipped the cargoes on July 19th, 1999 and submitted the shipping documents of part A to negotiate to Bank of China, Hongkong Branch on July 27th, 1999. On August 4th, 1999, after checking up the documents applied by EB, RC brought up three discrepancies and notified Bank of China, Hongkong Branch by telegraph, expressing “keep the documents and wait the indication of your bank” and “the risks will be bore by your bank”. Bank of China, Hongkong Branch sent word of the discrepancies to RC, asking RC to modify them. Three discrepancies are: 1. The brand of car “CE609” is different with those in the other documents; 2. It is unreasonable and later than the consignment day that three certificates of producing area of the customer-service elevators were issued on August 25th, 1999; and 3. The name of cargoes in the invoice did not give clear indication of packing. After modification, RC submitted the documents, again, to the negotiating bank, the Bank of China, Hongkong Branch, on August 6th, 1999. On August 11th, 1999, EB received the documents, however, through checking up, EB hold that the documents still had the unconformity of “late to submit” and notified the Bank of China, Hongkong Branch by telegraph on August 13th, 1999, stating: “ Our bank will keep the documents and wait the indication from your bank. The risks will be born by your bank.” On September 7th, 1999, the applicant of issuing the L/C, XWC, faxed to EB, stating that: agree your bank to pay 5,160,000.00HKD externally in time and now ask your bank to pay externally again, but do not agree your bank to return the documents. If not, all aftereffects occurred by doing so would be bore by your bank. Then, EB twice notified the presentation bank, the Bank of China, Hongkong Branch, by telegraph, stating that it does not accept the discrepancy and has intention to return the whole set of documents to the Bank of China, Hongkong Branch as soon as practicable. On September 15th, 1999, EB notified the Bank of China, Hongkong Branch, by telegraph, stating that it refused to accept the discrepancy and would return the whole set of documents to the presentation bank Thereafter, RC and XWC have consulted many times on how to pay for the cargoes, however, no result came out. On December 16th, 1999, RC brought an application for arbitration on this payment for cargoes to the China International Economic and Trade Arbitration Committee, Shenzhen Chamber, asking to arbitrate that XWC pays the cargoes on 5,160,000HKD and its interest and fees for storage. The China International Economic and Trade Arbitration Committee, Shenzhen Chamber made the arbitration award on April 5th, 2000, supporting the application of RC. XWC did not pay as scheduled in according to the arbitration award; thus RC suited EB to this court at the dispute over the L/C, asking EB to pay the cargoes on 5,160,000HKD and its interest and the cost of this case.
Questions:
1. In this case, by the application of XWC, EB issued the L/C, with RC as the beneficiary, the bill relation of the L/C between RC and EB occurred and was separate with the original Sales Contract of Elevator?
2. whether EB shall negotiate the L/C in according to the direction of the applicant？
$$分页$$
II 简答题
Please analyze the definition of M/T.
III 图表题
Please draw the process of a typical L/C transaction.
END OF EXAM
Limit of 3000 words for entire exam. See additional instructions on first sheet of exam.
$$分页$$
