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No. 3 of Fourth Group of Twelve Model Cases Involving the "Belt and Road" Initiative Published by the Supreme People's Court: Accurately Determining Whether Payment Was Negotiated in Good faith and Promoting the Sound Development of the L/C System— Case of dispute over L/C fraud (Jiangsu Puhua Co., Ltd. v. Shanghai Branch of Bank of East Asia (China) Co., Ltd.
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最高人民法院发布第四批12个涉“一带一路”建设典型案例之三：江苏普华有限公司与东亚银行（中国）有限公司上海分行等信用证欺诈纠纷案——准确判定议付行为是否善意 促进信用证制度健康发展
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【法宝引证码】
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| No. 3 of Fourth Group of Twelve Model Cases Involving the "Belt and Road" Initiative Published by the Supreme People's Court: Accurately Determining Whether Payment Was Negotiated in Good faith and Promoting the Sound Development of the L/C System— Case of dispute over L/C fraud (Jiangsu Puhua Co., Ltd. v. Shanghai Branch of Bank of East Asia (China) Co., Ltd. | | 最高人民法院发布第四批12个涉“一带一路”建设典型案例之三：江苏普华有限公司与东亚银行（中国）有限公司上海分行等信用证欺诈纠纷案——准确判定议付行为是否善意 促进信用证制度健康发展 |
| [Basic Facts] | | 【基本案情】 |
| Chuanqi Company entrusted Jiangsu Puhua Co., Ltd. (hereinafter referred to as “Puhua Company”) to act as an agent for the import of cotton. On the same day, Puhua Company and Chengfeng Company entered into a Sales Contract, under which Chengfeng Company sold raw cotton to Puhua Company, payment was made by letter of credit (L/C) payable on demand, and Shanghai Branch of Bank of East Asia (China) Co., Ltd. (hereinafter referred to as “Shanghai Branch of BEA”) was the notifying bank. Upon Puhua Company's application, China Everbright Bank (hereinafter referred to as “CEB”) issued the L/C. On May 30, 2013, Shanghai Branch of BEA issued to Chengfeng Company a Notice of Payment to Chengfeng Company. On the same day, Chengfeng Company submitted to Shanghai Branch of BEA the Instructions for Representation of Documents and specified “guarantee for all discrepancies” in the “Column of Other Instructions.” The bill of lading under the L/C submitted by Chengfeng Company did not set forth the endorsement of the consignor and it only bore the signature endorsement of Chengfeng Company. Upon receipt of the documents forwarded by CEB, Puhua Company promised to make payment and entrusted a third party with handling the delivery formalities, but was informed that the goods under the bill of lading had been taken away. On February 12, 2015, Chen [REDACTED], legal representative of both Chuanqi Company and Chengfeng Company, was convicted of L/C fraud. Puhua Company filed this lawsuit and requested that the court should order termination of payment under the L/C issued by CEB. According to the judgments of first instance and second instance, the act of Shanghai Branch of BEA was a negotiation of payment in good faith and requested by Puhua Company, the courts of first instance and second instance ordered termination of payment under the L/C involved. Shanghai Branch of BEA filed an application for retrial. | | 传旗公司委托普华公司代理进口棉花。同日，普华公司与诚峰公司签订《买卖合同》，约定诚峰公司向普华公司出售原棉，付款方式为见票付款信用证，通知行为东亚银行。经普华公司申请，光大银行开立了信用证。2013年5月30日，东亚银行向诚峰公司发出《付款通知书》。同日，诚峰公司向东亚银行递交《交单委托指示》，在“其他指示栏”注明“担保一切不符点”。诚峰公司提交的信用证项下提单没有其载明的托运人的背书，仅有诚峰公司的签章背书。普华公司收到光大银行转交的单据后承付，并委托第三方办理提货手续，但被告知提单项下货物已被提走。2015年2月12日，传奇公司法定代表人、诚峰公司代表人陈某被判处信用证诈骗罪。普华公司提起本案诉讼，请求判令终止支付光大银行开立信用证项下款项。一、二审判决认为东亚银行的议付不属于善意议付，依据普华公司诉请判令终止支付案涉信用证项下款项。东亚银行申请再审。 |
| [Judgment] | | 【裁判结果】 |
| Upon retrial, the Supreme People's Court held that, pursuant to the provisions of item (4), paragraph 1 of Article 10 of the Provisions of the Supreme People's Court on Several Issues concerning the Trial of Cases of L/C Disputes, the negotiating bank's negotiation of payment in good faith was an exceptional circumstance for termination of payment in a L/C fraud. With respect to whether the payment was negotiated in good faith, it should be taken into full account whether the negotiating bank engaged in or knew the fraud before negotiating the payment and whether the negotiating bank fulfilled the obligation of examining documents. In accordance with the provisions of Article 14 of the Uniform Customs and Practice for Documentary Credits (UCP600) developed by the International Chamber of Commerce, the negotiating bank shall negotiate the payment under the circumstance of complying representation of documents and it shall have an independent obligation of examining documents. Therefore, the claims of Shanghai Branch of BEA that the issuing bank accepted the defect of endorsement on the bill of lading involved and the payment was negotiated in good faith were untenable. With regard to how to examine an order bill of lading, according to the requirements as provided in E13a of the International Standard Banking Practice (ISBP) for the Examination of Documents under Documentary Credits (hereinafter referred to as “ISBP”) developed by the International Chamber of Commerce, an order bill of lading must be endorsed by the carrier. This is a long-standing banking practice. In the order bill of lading presented by Chengfeng Company to Shanghai Branch of BEA, there was only endorsement of Chengfeng Company and there was no endorsement of the carrier or carrier's agent. The order bill of lading did not satisfy the requirements of the L/C involved that the corresponding bill of lading should be “an order bill of lading or a blank endorsement and freight prepaid should be marked.” Therefore, it constituted noncomplying documents. Shanghai Branch of BEA failed to perform the general duty of care for examination of documents. As it required that the beneficiary should enter “guarantee for all discrepancies” in the Instructions for Entrusted Presentation of Documents and then negotiate the payment, such act was not an act of negotiating the payment in good faith. Therefore, the Supreme People's Court ruled to deny the application of Shanghai Branch of BEA for retrial. | | 最高人民法院再审审查认为，根据《最高人民法院关于审理信用证纠纷案件若干问题的规定》第十条第一款第四项的规定，议付行善意地进行了议付是信用证欺诈止付的例外情形。关于议付行为是否善意，应综合考虑议付行在议付之前是否参与或知晓欺诈，其是否尽到审单义务。根据国际商会制定的《跟单信用证统一惯例》（UCP600）第14条规定，议付行应在相符交单的情况下办理议付，其具有独立的审单义务。因此，东亚银行关于开证行接受了案涉提单背书的瑕疵，其议付系善意的主张不能成立。对于如何审核指示提单，国际商会制定的《关于审核跟单信用证项下单据的国际标准银行实务》（ISBP）第E13a要求，对于指示提单，必须经托运人背书。这是一项长期存在的银行业惯例。诚峰公司向东亚银行提交的指示提单均仅有诚峰公司的背书，而没有托运人或托运人代理人的背书，不符合案涉信用证关于相应提单应为“指示提单、空白背书并注明运费预付”的要求，属于单证不相符。东亚银行对于单据的审查未尽到一般注意义务，其要求受益人在《交单委托指示》中填写“担保一切不符点”即予以议付，其议付行为不属于善意议付行为，故裁定驳回东亚银行的再审申请。 |
| ．．．．．． | | ．．．．．． |
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