How can export enterprises save themselves at the legal level and avoid or reduce losses as possible?
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提问 & 解答
A: Yes. “Force majeure” means the objective circumstances which are unforeseeable, unavoidable and insurmountable. The epidemic outbreak caused by 2019-nCoV is a sudden and abnormal event. There is no absolutely effective method to prevent the spread of the virus. At the same time, both the state council and the local governments have issued compulsory notices to delay the resumption of work. These are in accordance with the above “force majeure” characteristics, which makes it fall on the “force majeure” events.
A: It shall depend on whether the breach of contracts is caused by the 2019-nCoV epidemic. If the breach of contracts is caused by the epidemic prevention and control measures taken by the government, which result in factory shutdown, traffic blockade, etc., the epidemic may be an exemption. If the breach of contracts has nothing to do with the 2019-nCoV epidemic, for example, the contract was concluded after the epidemic outbreak or the breach of contract occurred before the epidemic outbreak, the epidemic shall not be an exemption.
１）合同全部不能履行的，不能履行一方應及時以書面方式通知對方解除合同，並提供解除合同的事由（即疫情）的證據。合同自通知到達對方時解除，或由當事人協商一致解除。對方如有異議，應在收到解除合同通知之日起三個月內向法院起訴。
２）合同不能依約履行（即部分履行或遲延履行）的，不能依約履行一方也應按前述方式通知對方及提供證據，當事人可協商變更合同或解除合同。
A: Relevant clauses in contracts shall stand, or the Contract Law shall apply in case of no relevant clause in contracts. If there are clauses in contracts relating to failure of contract performance, the parties shall proceed according to such clauses. If there is no relevant clause in the contract, it is necessary to distinguish the two cases of “non-performance” and “partial non-performance”, and differently proceed according to the Contract Law.
1) In case of “non-performance” , the party failing to perform shall promptly notify the other party in writing to terminate the contract, and shall provide evidence on the cause of termination (i.e., the epidemic). The contract shall be terminated upon receipt of the notice to the other party or by mutual agreement of the parties. If the other party has any objection, they shall file a lawsuit with the court within three months after receiving the notice of termination of the contract.
2) In case of “partial non-performance”(that is, partial performance or delayed performance), the party of partial non-performance shall also notify the other party and provide evidence in the aforementioned manner, and the parties may modify or terminate the contract through negotiation.
A: You may apply with CCPIT for a certificate as proof of force majeure. According to the Articles of Association of CCPIT, the Council may issue such certificate. Recently, many CCPIT local branches have published relevant announcements, making it clear that, in case of breach of international trade contracts caused by the 2019-nCoV epidemic, the concerning enterprises may apply with CCPIT for a certificate as proof of force majeure.
http://www.rzccpit.com/
申請辦理新型冠狀病毒感染的肺炎疫情不可抗力事實性證明。
中國貿促會商事認證中心諮詢、聯繫電話：
010-82217027/7035/7010
A: Online application is available. Enterprises can use the online certification platform of CCPIT Commercial Certification Center http://www.rzccpit.com/ to apply for the factual certificate on force majeure of the 2019-nCoV epidemic. The hot lines of the CCPIT Commercial Certification Center are 010-82217027/7035/7010.
答：1）企業所在地政府、機構出具的證明/公告（有關延期復工、交通停運等）；2）海陸空相關延運、延飛、取消等通知/證明；3）出口貨物買賣合同、貨物訂艙協定、貨運代理協定、報關單等；4）其他所能提供的材料。
A: 1) Certificates/announcements issued by local governments or organizations where the enterprises locate (relating to delayed resumption of work, transportation suspension, etc.); 2) Notices/certificates relating to the delay or cancellation of sea, land or air transportation; 3) sales contracts for export goods, cargo booking agreements, shipping agency agreements, customs declarations, etc.; 4) other materials available.
答：這不影響主張不可抗力免責。由於“不可抗力”屬於法定免責事由，當事人即使未在合同中約定不可抗力條款或者約定將不可抗力排除在免責事由之外，在符合法定條件的情況下，均不影響直接援引法律規定，主張不可抗力免責。
A: This does not affect the claim of force majeure exemption. Since “force majeure” is a statutory exemption cause, even if the parties fail to agree on the force majeure clause in contracts or exclude force majeure events from the exemption causes, if all legal conditions are met, it does not affect the claim of force majeure exemption by directly invoking legal provisions.
本文作者：黃全來律師