About the law cases around us

April 07, 2006 Hao Zhonghua

Private International Law Case Study

December 22, 2005 Administrator

1. In August 1997, a French businessman, Bill, took a taxi to the train station from a large hotel in Wuhan. After the car arrived at the station, Bill forgot a handbag with valuables in the cab. Driver Ling found the bag, looking for the owner, unsuccessful.

Bill lost the bag, in the Wuhan People's Radio "Wuhan Evening News" on the broadcast of the search for objects, said the return of the lost bag will be rewarded, and published contact information.

The next day, Ling returned the bag to Bill. Bill honored his promise and paid the reward.

Bill purse lost and found, entrusted Ms. Fan, a Chinese national, to the Wuhan Municipal Public Management Office to complain. After several attempts, the Public Administration Office was able to track down Ling, the man who received the honorarium. The Public Administration Office notified Ling to come to the Public Administration Office to explain the situation. Lingmou admitted to accept the honorarium fact, and write down the "found objects". March 10, Lingmou will pay the honorarium to the public administration office, the public administration office to the owner. The public management office to "report to be investigated" as the reason, suspend the cab Lingmou license, require a designated time and a designated place to accept the processing.

Ling Mou feel aggrieved, and then to the Wuhan Hankou District People's Court filed an administrative lawsuit, requesting the public administration to return the honorarium. The court accepted the case and held a hearing. Q：

1）What country's law should govern the foreign-related civil relationship in this case? A:

Bill took a taxi and formed a foreign transportation contract with Ling. According to the principle of closest connection, the applicable law of this legal relationship is Chinese law.

Bill published a reward advertisement and Ling returned the purse, which constituted a reward contractual relationship, according to the principle of closest connection, Chinese law should be the governing law.

Bill lost and found the bag, entrusted the agent to complain, so that Ling Mou in violation of the true meaning of the situation of the honorarium, Bill asked for the honorarium constitutes unjust enrichment. This legal relationship applies international practice, Chinese law as the governing law.

2. American Emerson came to China to teach at a university. During the teaching period and in the university teaching Chinese female teacher Tianmou married. After marriage, due to the two sides of the personality and other factors, Emerson to the Shanghai Intermediate People's Court, requesting a divorce. After suing. Emerson's teaching term expired and he was ready to return to China. Emerson proposed to the court to appoint an American teacher who also taught at the school or to appoint the consul of the U.S. Consulate in Shanghai to represent him in the lawsuit.

Q: In this case, is it proper for Emerson to entrust someone else to represent him in the lawsuit, and why? A:

Emerson's practice is justified. In China, Chinese citizens can accept entrustment as litigation agents. China applies national treatment to foreigners in China and allows foreigners to entrust foreigners of the same nationality as them to act as litigation agents.

Officials of foreign embassies and consulates in China may accept the appointment of their citizens to act as litigators in their personal capacity. According to the provisions of the Vienna Convention on Consular Relations, to which China is a party, when a foreigner who is a party to a lawsuit is absent from the territory of China,

or for other reasons is unable to appear in due course before a court of law in China, the consul of the foreign country in China may, without being entrusted with such a task, act as its representative or arrange for a representative to appear before a court of law in China in the name of the consul directly.

3. Qian Mou, a Chinese citizen, went to Japan to study in 1992, and on the eve of his return to China in 1995, on his way to work, he was knocked down by a truck carrying goods and died as a result of the rescue efforts. Qian's wife, Li Mou, as a plenipotentiary agent, accompanied by Qian's brother to Japan to take care of the aftermath. After negotiations, the Japanese side of the compensation of 5 million yen.

After the return, for the distribution of inheritance, LiMou and QianMou's family dispute, consultation is unsuccessful. Qian's family to Li Mou and his daughter as a defendant, sued to the local people's court.

Q: How should the law be applied in this case? Explain the reasons. A: The case should be governed by Japanese law.

Qian died intestate and his inheritance is a legal succession. According to Article 149 of the General Principles of Civil Law of the People's Republic of China, "In the case of legal succession to an estate, the law of the place of residence of the decedent at the time of his death shall apply to movable property", Japanese law shall be the applicable law in this case.

Qian had two residences. One is the legal domicile in China and the other is the temporary domicile in Japan. Since Li has been residing in Japan for two years, the temporary residence in Japan is considered to be the domicile. According to the relevant Chinese law, Li's domicile at the time of his death was his residence in Japan.

4. On May 7, 1988, a Japanese company filed a patent application for the invention of "anti-eye fatigue lenses" with the Japanese Patent Office. Later, on October 3, 1988, the company filed an application for a patent for the same subject matter with the Chinese Patent Office, and at the same time filed a written declaration of priority, and on December 25, 1988, submitted to the Chinese Patent Office a copy of the documents of the first patent application filed in Japan.

The Institute of Optics of a Chinese university also successfully developed a lens for reducing eye fatigue caused by a fluorescent screen in July 1988, which is identical to the lens of a Japanese company in terms of specific structure, technical processing, and technical effect. The Institute of Optics of a Chinese university filed an application for a patent for the invention of "health care lenses" on September 10, 1988 with the Chinese Patent Office.

(Note: China and Japan are both parties to the Paris Convention for the Protection of Industrial Property of 1883) Q: To whom should the Chinese Patent Office grant the patent? Why? A:

The Chinese Patent Office should grant the patent right to a Japanese company.

China and Japan **** are both parties to the Paris Convention for the Protection of Industrial Property, therefore, the dispute as to to to whom the patent right should be granted in this case should be determined on the basis of the Paris Convention for the Protection of Industrial Property.

The Paris Convention for the Protection of Industrial Property stipulates the principle of priority, and the priority of a patent application for an invention is 12 months. China's law stipulates that foreigners applying for a patent in China shall enjoy the priority stipulated in the Convention as long as they have submitted the necessary documents in accordance with China's law.

While the Optical Research Institute of a Chinese university applied for a patent at the Chinese Patent Office before a Japanese company, this application was not sufficient to counteract the priority provided for in the Convention, and therefore the patent of the idea should be granted to a Japanese company.

5. Mr. Bian and Mr. Wang, both Chinese nationals, were living in Brazil after marriage. Due to marital disputes, Brazilian law does not allow divorce, the couple reached a long-term separation agreement in 1986 in accordance with Brazilian law, and requested the Consular Department of the Chinese Embassy in Brazil to recognize and assist in its implementation.

Q: Should China recognize and assist in the implementation of the separation agreement reached by Bian and Wang? Why? A:

China's embassies in foreign countries should implement China's laws in handling matters between Chinese citizens, and the separation agreement does not comply with China's marriage law, so it cannot be recognized and assisted in its implementation. The separation agreement was concluded in a manner permitted by Brazilian law, so it can only be recognized by the Brazilian authorities in accordance with the procedures set out in Brazilian law.

Bian and Wang's separation agreement was concluded in accordance with Brazilian law, the Brazilian law prohibiting divorce contradicts the relevant provisions of China's marriage law, and recognizing and assisting in the implementation of the separation agreement concluded by Bian and Wang is contrary to China's public **** order, and therefore China can not recognize the validity of Bian and Wang's separation agreement.

A country's courts and a country's embassies abroad to recognize and enforce can only be a country's court judgments or arbitration award, but not the agreement between the parties. 6.

A Chinese citizen, Xia (male), and a Chinese citizen, Feng (female), married in Shenyang in 1997. After the marriage, Xia studied in Canada at his own expense, obtained a master's degree in 2001, and then found a job in a company in New York State, U.S.A. In August 2002, Xia filed a divorce lawsuit in the State of New York on the grounds of the couple's prolonged separation, and the petition for divorce was mailed by Xia's attorney and served on Feng. After some counseling, Feng filed a divorce suit in the Shenyang Intermediate People's Court.

Q: After the New York State court has accepted Xia's divorce lawsuit, can our court accept Feng's divorce lawsuit?

A: New York State Court accepted Xia's divorce proceedings, our courts can still accept Feng's divorce proceedings. For foreign divorce cases, in order to maximize the protection of the interests of Chinese citizens, China is not opposed to two lawsuits in one case, one of the parties to the divorce lawsuit filed in a foreign country, does not prevent the courts in China to accept the divorce lawsuit filed by Chinese citizens.

7. In 1997, Yu, a Chinese citizen, married Yamaguchi, a Japanese citizen, in China, and after the marriage they had a son; in 1999, Yamaguchi returned to Japan on his own, and in 2001, Yu filed for divorce in the Chinese courts on the grounds that the couple had been separated for a long period of time and that their relationship had faded. Yamaguchi consented to the divorce. A dispute arose over the custody and support of the children. Yamaguchi demanded that her son be brought back to Japan and raised by her, while Yu demanded that his son remain in China and be raised by him.

Q: What country's law should apply in this case? Why? A:

Article 148 of the General Principles of the Civil Law of the People's Republic of China*** and of the People's Republic of China stipulates that: "The law of the country with which the dependent has the closest connection shall be applied to maintenance." The fact that Yu and Yamaguchi's son was born in China and has Chinese nationality, that his father is a Chinese citizen with Chinese nationality, and that he has been living in China since his birth indicates that China has the closest connection with him, and that Chinese law should be applied in this case.

Additionally, Article 20 of the Laws of Japan stipulates: "The legal relationship between parents and children shall be governed by the law of the father's own country". The father, Yu, is a Chinese citizen, and according to Japanese law, Chinese law should also be applied in this case.

8. Shen, a Chinese citizen, and Liang, a Chinese citizen, married in China in 1939 and had two daughters after the marriage. Shen left for Taiwan in 1949 and became a Canadian citizen in 1988. After their separation, the parties corresponded frequently. Liang went to Canada in 1975 to live with Shen *** After 1984, Shen returned to China once a year and purchased and rebuilt three residences In 1989, Liang and Shen had a conflict in the United States, and Shen came to China alone and cohabited with a woman. When Liang learned of this situation, he asked Shen to sever his relationship with the cohabiting woman. Cao did not listen, but instead went to the Canadian court to sue for divorce and was granted.In March 1991, Shen came back to China, and on Aug. 17 went to the Shaoxing Civil Affairs Bureau's foreign marriage registration office with the woman he was cohabiting with to register the marriage.

On December 14, 1991, Liang filed a lawsuit with the Shaoxing Intermediate People's Court, requesting a divorce from Shen, dividing the *** same property during the period of the relationship, and requesting that Shen be ordered to pay alimony and support.

Q: 1. Does the Shaoxing Intermediate People's Court have jurisdiction over this case? Explain the reasons. 2. How should the law be applied in this case? A:

1. The Shaoxing Intermediate People's Court can accept this divorce case. Shen's divorce was obtained and granted in a Canadian court, and the marriage between Shen and Liang was dissolved in Canada. The judgment of the Canadian court does not automatically have legal effect in China, and the judgment of the foreign court can only take effect in China if the party concerned has filed a request for recognition and enforcement in China with the Chinese court, and the Chinese court, upon examination, finds that the recognition and enforcement of the judgment does not conflict with China's public *** order, and that the Chinese court has made a ruling recognizing the judgment of the foreign court as having legal effect in China. Shen did not file an application for recognition of the foreign court's judgment in the Chinese court, so the Canadian court's judgment did not take legal effect in China, so the Chinese court had the right to accept the divorce lawsuit filed by Liang.

2. After China accepts the divorce lawsuit, Chinese law shall be applied as the applicable law. Based on the General Principles of Civil Law of the People's Republic of China, Article 147 "Divorce shall be governed by the law of the place where the court accepts the case".

9. An Englishman went to a casino in Honduras to gamble, lost his money, borrowed $100,000 from the casino, and lost the $100,000 again without repaying it. The Honduran, who runs the casino, goes to the British court and files a lawsuit asking the court to order the borrower to repay the loan. English law makes it a crime to operate a casino, but Honduran law allows casinos.

Q: Was a contractual relationship established in this case? How should the English court apply the law? A:

The loan contract in this case was established. Because the loan contract was concluded in Honduras and performed in Honduras, the law of the place of conclusion of the contract and the law of the place of performance of the contract, i.e., Honduran law, should be applied in judging the validity of the contract, and according to the law of Honduras, the loan contract is valid.

However, the law of the Government of Honduras permitting the opening of casinos conflicts with the law of England prohibiting the opening of casinos, and the English court may apply the reservation of public * * * order to exclude the validity of Honduran law in the United States, and to dismiss the Honduran suit.

10. Hong Kong Bank A and China's Company B signed a loan contract and mortgage contract each. In the contract, the parties agreed to apply the law of Hong Kong as the applicable law in case of dispute. After signing the contract, Hong Kong bank A has provided all the loan according to the contract. Upon maturity, Company B repaid only a small portion of the loan. Hong Kong Bank A filed a lawsuit in the court of the defendant's domicile, requesting the court to order the defendant to repay the loan. The court accepted the case. In accordance with the parties' agreement on the application of law in the contract, the court notified the parties to provide the laws of Hong Kong on loan contracts and mortgage contracts. The parties failed to provide the law of Hong Kong in relation to the loan contract and the mortgage contract within the time limit set by the court.

Q: 1. Can Hong Kong law be applied as the governing law in this case?

2. What is the law to be applied by the court where the parties have failed to provide the Hong Kong law on loan contracts and mortgage contracts within the time limit set by the court? Answer:

1. Hong Kong law can be applied as the governing law in this case because the parties agreed in the contract that Hong Kong law would be applied in case of disputes, which is in line with China's laws.

2. If neither the parties nor the court can identify the content of the law to be applied, the court should apply Chinese law.

11. Pierre, a Frenchman, entered into a contract for the purchase and sale of raw materials in China with Chinese company A when he was 20 years old. After the contract was signed, the price of raw materials in the international market rose greatly, Pierre did not fulfill the contract. China Company A filed a lawsuit in the Chinese court, requesting the court to order Pierre to bear the responsibility of breach of contract.

Pierre replied that the age of majority under French law is 21 years old, and that he was 19 years old at the time of the signing of the contract, which makes him a minor and not fully capable of acting, and therefore should not be held liable for breach of contract. Q:

Should Pierre be liable for breach of contract? Why? A: Pierre should be liable for breach of contract.

The judicial interpretation of the Supreme People's Court of China stipulates that a foreigner who carries out civil activities within the territory of China shall be deemed to have the capacity to commit civil acts if he does not have the capacity to act in accordance with the law of his own country but has the capacity to act in accordance with the law of the place where he acts.

The contract in this case was signed between Pierre and China A Company in China, and the place of fulfillment of the contract is also China, it should be determined that the place of action of the contract is in China, and Chinese law should be applied to determine whether Pierre has the ability to act.

Chinese law provides that 18 years of age is an adult, Pierre was 19 years old at the time of the contract, has full capacity to act, and should be liable for breach of contract.

12. A Chinese native products company and a Singaporean company signed a contract for the sale and purchase of jujubes, under which the Chinese native products company would export a batch of jujubes to a Singaporean company. The contract stipulates that the grade of the jujubes exported by a Chinese local product company to a Singaporean company is grade three. After the signing of the contract, a Singaporean company applied to the bank to open a letter of credit. At the time of delivery, a Chinese native products company was out of stock of third-grade jujubes, so it switched to second-grade jujubes for delivery and stated on the invoice: second-grade jujubes, unchanged in price, still charged at third-grade price. A Chinese local products company believed that the goods were of a higher grade than that stipulated in the contract and that the price would remain unchanged, so the buyer would not raise any objections. But the fact is just the opposite, after the shipment, a Chinese native products company to the bank negotiation payment, the issuing bank refused to pay the payment, the reason is that the documents and the contract does not match. The issuing bank refused to pay because the documents were not in conformity with the contract. A Chinese native products company asked a Singaporean company to amend the letter of credit, which was refused, and the Singaporean company accused the Chinese native products company of breaching the contract and demanded to be held liable for the breach.

Q: 1) What is the law that regulates the letter of credit relationship? 2) Does the issuing bank have the right to refuse payment for the goods? A:

1) In the international goods sale and purchase relationship, the law that adjusts the relationship of letter of credit is usually the Uniform Customs and Practice for Documentary Credits (UCP) which is commonly chosen by all countries.

2) The bank has the right to refuse payment. Uniform Customs and Practice for Documentary Credits" stipulates that the seller delivers the negotiated payment documents, must be consistent with the contract agreement, to achieve the single, the documents in line with the documents. If the seller delivers the negotiated payment documents and the contract agreement is not consistent, the single does not match or the documents do not match, the bank has the right to refuse to pay the goods. In this case, the invoice delivered by a Chinese native products company was inconsistent with the contract, and the bank had the right to refuse to pay for the goods.

13. Chinese citizen Wang Meimei settled in Indonesia with her parents in 1948, and joined the Indonesian nationality in 1958. 1995, Wang Meimei's husband died, Wang Meimei has no other relatives except a son. 1996, Wang Meimei sold her property in Indonesia, and her son returned to China. After returning to China, Wang bought an apartment to live in. Wang Meimei's son was unemployed and lived off of Wang Meimei's savings. Wang Meimei was disgusted by her son's desire to work for a living and repeatedly urged her son to earn his own living, but her son did not heed her advice. Wang Meimei then tightened her control over the property. Wang Meimei's son was dissatisfied with his mother and killed her twice in 1997 and 1998, both times being rescued by a beloved dog that lived with his mother all the time. Wang Meimei is very old, and by the son of the two assassination, heart failure, knowing that soon will die. 1998 the end of Wang Meimei found a lawyer to make a written will:

One, cancel the son's right to inheritance. Secondly, after my death, I can still retain about 100,000 yuan, inherited by the dog, the money by the lawyer in charge of the dog's

dog's living expenses. The daily life of the dog will be taken care of by the lawyer. I. After the lawyer fulfills the obligation of delivery, the apartment set will be owned by the lawyer.

Wong Mee Mae died shortly after making her will. The lawyer buried the deceased. Wang Meimei's beloved dog waited at Wang Meimei's grave for four days and four nights without eating or drinking, and died a sad death. Q:

1) What country's law applies to the validity of Wang Meimei's will? 2) How will Wang Meimei's estate be handled? A:

1) China's laws do not make clear provisions on the legal application of foreign-related wills. In judicial practice, the formal elements of the will

In accordance with the principle of dominant behavior of the place, the law of the place where the will is made, and the substantive elements of the will, with reference to the principle of legal application of the law of legal succession. Wang Meimei's will was made in China, the formal elements of the will are applicable to Chinese law. The substantive elements of the will shall be dealt with by reference to the principles of legal succession in China, and the real estate will shall be governed by the law of the place where the real estate is located, and the movable property will shall be governed by the law of the place where the decedent was domiciled at the time of his death. The immovable property bequeathed by the decedent is in China, and the domicile of the decedent at the time of his death is also in China, so the substantive elements of the will should be applied to Chinese law.

2) Under Chinese law, the will is a partially valid will. The disinheritance of his son is partially valid.

The partial validity of the will of the dog's inheritance is invalid, and in China, the dog cannot be the subject of inheritance. After the death of the dog, this part of the inheritance becomes uninherited property and reverts to the state.

The part of the will that pays the lawyer is valid. Because the faithful dog died with its owner, the lawyer could not perform the duty of care as required by the will, so the lawyer should be paid for the part of his labor in the estate, and the remaining part of the estate is uninherited property and reverts to the state.

14. April 30, 1986, dalian city native products import and export company and Norway aiguille company limited signed plastic woven bag sales contract, Norway aiguille company limited to dalian city native products import and export company to buy 110 tons of plastic woven bag, the price of the conditions of the CIF950 U.S. dollars / ton, the loading period of 1987 February-March. The first batch of goods delivered by Dalian Native Products Import and Export Corporation in accordance with the contract was shipped on February 27, 1987 at the port of Dalian, and the second batch of goods was shipped in two batches on March 7 and March 27 of the same year at the port of Dalian. For both shipments, Norsk Egli S.A. paid by letter of credit within 90 days from the date of issuance of the bill of lading. However, after receiving the goods, Egeli Norway Co., Ltd. applied to the Royal Norwegian Court to withhold the payment under the two letters of credit on the ground that Dalian Native Products Import & Export Corporation had defaulted. Accordingly, the issuing bank, Oriental Whaley Bank, notified Bank of China in writing that the price of the two shipments had not been paid so far. Dalian Native Products Import & Export Corporation therefore filed a lawsuit, requesting for the termination of the contract and ordering Norwegian Egeli AG to pay the outstanding amount of the goods. The Norwegian company did not raise a defense.

Please ask: (1) Dalian Native Products Import & Export Company filed a lawsuit to the Chinese court in this case, whether the local Chinese court has jurisdiction? 2) Can Chinese law be applied in this case and what is its legal basis?

Reference Answer

1) The Chinese court has jurisdiction. The contract dispute, although Norway Egli Co., Ltd. in the Kingdom of Norway court pre-empted the application for the seizure of the payment due to the Dalian City, but because the two sides in the contract did not agree on the governing law, the Dalian City, Dalian City, import and export of native products on the contract disputes in the contract performance of the location of the Chinese courts, the place of the Chinese courts have jurisdiction.

2) On the application of law. The parties in this case did not agree on the law application clause in the contract, therefore, according to Article 145 of the General Principles of Civil Law, the law of the country with which the contract has the closest connection shall be applied in this case. Since the contract was signed in China and the port of shipment was in China, and according to the CIF price condition, Company A, as the seller, paid the freight, insurance and bore the risk before the goods crossed the ship's rail, the country with which the contract was most closely connected was China, and Chinese law should be applied.

15. company a and company b are registered in hong kong enterprise legal person. in March 1986, company b and guangzhou city company c signed a contract of cooperation in guangzhou a hotel. In order to raise funds for the cooperative business, company B and company A in September 1986 in Hong Kong signed a loan agreement, the contract agreed that the loan agreement to apply the laws of Hong Kong and the laws of the People's Republic of China * * * and the State. Later, Company B repeatedly defaulted on the due loan and interest, and Company A demanded Company B to repay the loan but failed to do so, so it sued to the Guangzhou Turbine People's Court. Company B responded to the lawsuit and agreed to apply Chinese law to the case.

Please ask: l) for this case, Guangzhou Intermediate People's Court has jurisdiction? (2) Can the court deal with this case and take the substantive law of China as the applicable law? A:

1) has jurisdiction over this case. Because both parties are Hong Kong legal person, the contract is signed, the place of performance is also in Hong Kong, the parties have no written agreement to choose the jurisdiction of the mainland courts, the case is not under the jurisdiction of the mainland courts. However, the loan obtained by Company B was invested in the cooperative enterprise in Guangzhou, and Company A filed a lawsuit with the court in Guangzhou, and Company B did not raise any objection and responded to the lawsuit and defended the case. According to the provisions of Articles 243 and 245 of China's Civil Procedure Law, the Intermediate People's Court of Guangzhou, as a court in the place where Company B has property available for seizure and as a court deemed to be competent, has jurisdiction over the case. It has jurisdiction over this case.

2) shall apply our laws. The original, company B in the contract agreed that disputes apply to the laws of Hong Kong and the laws of the Chinese people **** and China. However, in the litigation, both parties agreed to apply the laws of the People's Republic of China **** and the State. According to Article 145 of the General Principles of the Civil Law of the People's Republic of China, "the parties to a foreign-related contract may choose the law applicable to the dispute over the contract", the applicable law in this case is the substantive law of China.

16.

A Shandong import and export company and a foreign company entered into a contract for the import of 5,000 tons of urea, according to the contract, we issued an irrevocable documentary letter of credit in favor of the foreign company, with a total amount of 1.48 million U.S. dollars. Both parties agreed to submit any dispute to the China International Economic and Trade Arbitration Commission (CIETAC) in Beijing for arbitration, and after the goods were loaded on the ship in October 1990, the foreign company paid the payment in the bank with the bill of lading. After the shipment arrived at Qingdao, our company found that there were serious quality problems with the urea, and immediately asked the commodity inspection organization to carry out an inspection, which confirmed that the urea was a waste product with no practical value. Our company demanded the bank to recover the payment with the certificate of commodity inspection, otherwise we will refuse to pay the payment to the bank.

Please ask: 1) Should the bank recover the amount paid for the goods and why? 2) Does my company have the right to refuse payment to the bank? Why?

3) Does the China International Economic and Trade Arbitration Commission accept this case? Why? Answer: 1) The bank should not recover the paid amount because it has already fulfilled its obligation to examine the conformity of the documents

2) Our company has no right to refuse to pay the bank because in the settlement of the letter of credit should adhere to the principle of the independence of the letter of credit, i.e., the letter of credit procedure is not affected by the performance of the contract, the bank only has the obligation to examine the conformity of the documents, and the parties to the contract to solve the problem by themselves.

3) China International Economic and Trade Arbitration Commission has the right to accept the case, based on the arbitration clause in the contract.

17. In August 1997, British Company A (seller) and Chinese Company B (buyer) entered into a contract for the sale and purchase of 200 computers in Shanghai, with a CIF Shanghai of US$1,000 each, payable by irrevocable letter of credit, to be delivered in December 1997 at the port of New York. on September 15, 1997, Bank of China, Shanghai Branch (issuer), at the buyer's direction, issued the seller with an On September 15, 1997, Bank of China Shanghai Branch (the issuing bank) issued an irrevocable letter of credit in the amount of $200,000 to the seller on the instructions of the buyer and entrusted Citibank, N.A. in New York to notify and negotiate the letter of credit. Upon examination, the documents matched and the bank was about to pay $200,000 to the seller. At the same time, the cargo ship left New York Harbor 10 days later, due to the voyage on the way to meet the heavy rain and reefs, the ship and the goods all sunk into the sea. At this time, the issuing bank has received a full set of documents sent by the negotiating bank, the buyer has also been informed of all the goods purchased by the news of the loss. Bank of China Shanghai Branch intends to refuse to reimburse the negotiating bank has negotiated 200,000 U.S. dollars for the goods, the reason is that its customers can not get the expected goods.

When did the risk of the goods pass from the seller to the buyer? (2) Can the issuing bank be relieved of its obligation to pay because of the total loss of the goods? What is the basis?

Reference Answer: (1) Risk passes from the seller to the buyer when the goods are delivered on board the ship at the port of shipment.

〈2）The issuing bank has no right to refuse payment. According to the International Chamber of Commerce, the Uniform Customs and Practice for Documentary Credits, the letter of credit transaction is independent of the contract of sale, the bank is only responsible for reviewing the documents, as long as the documents are consistent with the terms of the letter of credit, the bank shall have to assume its obligation to pay.

18. A Russian agent loaded goods onto a German ship at a Russian port, via the port of Hull, England, ready to be handed over to the consignee, Kemal, who was an Englishman and domiciled in England, and the ship had an accident off the Norwegian coast, but the goods were safely discharged on shore. The master of the ship sold the goods to a bona fide third person, who in turn sold them in Norway to the defendant in this case, Sevier, by whom they were shipped to England, and the consignee, Kemal, brought an action in the English courts for the return of the goods. According to the Norwegian law, the captain of the ship, in the case of distress, has the right to sell the goods, and the bona fide buyer has the right to obtain ownership of the goods; but the captain of the ship, if he sells the goods without just cause, is liable to the original owner of the goods. The English court held that the defendant Sevier acquired legal title to the goods under Norwegian law. Norway was the situs in rem at the time of the sale and its laws were to be applied. Therefore, the English court dismissed Kemal's claim.

What is the "formula of descent" used by the English court in this case? Explain this formula of descent. Answer:

In this case, the English court dealt with the dispute on the basis of the "lex situs".

The "lex rei sitae" is an important principle of private international law for resolving conflicts of laws in respect of property rights. The law of the seat of the thing", that is, the law of the location of the object of property relations. Real estate rights in rem according to the law of the seat of the object has become the principle generally recognized by countries around the world. China's "general principles of civil law" and the supreme people's court "on the implementation of the general principles of civil law of the people's republic of china (for trial implementation)" in the ownership of immovable property, purchase and sale, leasing, mortgages, the use of civil relations, shall apply to the law of the seat of the thing.

"The law of the place of things" applies to the identification or distinction between movable and immovable property, the scope of the object of property rights, the type and content of property rights, the acquisition, transfer, change and destruction of property rights, and the way of protection of property rights." The "law of the place of the object" is not the only principle of conflict to solve all the problems of property rights, such as the relationship of property rights of the selected goods, the relationship of property rights of ships, aircraft and other means of transportation are exceptions to the solution of the relationship of property rights.

19. On July 8, 1999, the Panamanian ship "Beacon" belonging to the Venezuelan Beacon Shipping Company sailed from the new port of Tianjin, China to the destination port of Hong Kong, and on July 10, the ship collided with the Panamanian ship "Yangtze River" belonging to the Panamanian Golden Overseas Private Limited Company. As a result of the collision, the engine and accommodation compartments of the vessel took on water and the stern of the vessel sank. The starboard stern and port center hull of the vessel were injured. Thereafter, the vessel resumed its route to the port of Singapore.

In December of the same year, Fiberhome learned of the arrival of the Yangtzekiang at the Chinese port of Qinhuangdao and filed a lawsuit with the Tianjin Maritime Court. The Tianjin Maritime Court accepted the case, but failed to ascertain the relevant provisions of Panamanian law and, with the consent of both parties, applied the General Principles of Civil Law and dealt with the case with reference to international practice.

Please ask: 1) What country's law should the Tianjin Maritime Court apply? Why? 2) What is the legal basis for the Tianjin Maritime Court to apply China's General Principles of Civil Law? A:

1) Panamanian law should be applied. Because the case of the "beacon" ship and the "Yangtze River" ship are registered in Panama *** and the country, both flying the flag of Panama, according to the "General Principles of the Civil Law of the People's Republic of China *** and the country" and international practice, should apply the law of the flag state, i.e., the law of the country of Panama *** and the law of the country.

2)

The two shipowners were operating in Venezuela*** and Singapore, and throughout the litigation process, neither party provided information on Panama's civil, maritime, and commercial law on damages, and the court was unable to ascertain that country's law. Under these circumstances, the court, with the consent of the parties, applied the law of the People's Republic of China, in accordance with the Supreme People's Court's Opinions on Several Issues Concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China (for Trial Implementation), which states: "If the matter cannot be ascertained by the above means, the law of the People's Republic of China shall be retained." Thus, the General Principles of Civil Law and international practice should be applied to this case.

20.

Early in 1998, the British company Fangwei and the Ningbo City Construction Development Company proposed to build a joint venture entertainment complex "Ningbo World" at the south gate of a park in Ningbo City. The development company then asked to go to the United Kingdom on the performance of the facilities invested by the company to investigate, the cost can be advanced by the company, to be compensated for after the cooperation. To this end, Fangwei Company on November 15, 1998, January 6, 1999, twice to the plaintiff sent an invitation letter, promised to stay in the United Kingdom during the period of food, accommodation and transportation will be borne. The two sides after consultation, on February 5, 1999 reached "on the development of the company to the United Kingdom to study matters agreement. Agreement agreed: (1) the development company to send a five-member team headed by Wang? /ca>