Plaintiff: Shanghai Mingsen Tire Co., Ltd., domiciled in Fengxian District, Shanghai.
Legal representative: Li Qiuming, general manager.
Attorney ad litem: Shi Liuliu, lawyer of Shanghai Lishuai Law Firm.
Defendant: Yangzhou Fulkan Machinery Manufacturing Co., Ltd., domiciled in Yangzhou.
Legal representative: Zhu Qi'an, executive director and general manager.
Attorney ad litem: Li Xuehai.
The plaintiff Shanghai Mingsen Tire Co., Ltd. (hereinafter referred to as Mingsen Company) and the defendant, Yangzhou Vulkan Machinery Manufacturing Co., Ltd. (hereinafter referred to as Vulkan Company), the case of a dispute over a sales contract, this court accepted the case on January 3, 2020 After that, a public hearing was held by applying the summary procedure according to law. Shi Liuliu, the agent ad litem of the plaintiff Mingsen Company, and Li Xuehai, the agent ad litem of the defendant Vulkan Company, appeared in court to participate in the lawsuit. The case has now been concluded.
The plaintiff Mingsen Company filed a lawsuit with this court: 1. Order the defendant to pay the plaintiff a payment of 20,000 yuan; 2. Order the defendant to pay the plaintiff a late performance fee (based on the principal of 10,000 yuan, 0.5% on a daily basis since 2018 Calculated from June 1 to January 22, 2020; based on the principal of 20,000 yuan, calculated on a daily basis at 0.5% from June 1, 2018 to the date of actual payment); 3. The lawyer’s fee in this case, Litigation costs are borne by the defendant. Facts and reasons: The plaintiff and the defendant signed a purchase contract on March 24, 2018. The defendant purchased genuine new tires from the plaintiff, and agreed on the amount of payment, payment date, and liability for breach of contract. After that, the plaintiff delivered the tires to the defendant as agreed, and issued VAT invoices of RMB 21,762 and RMB 65,286 on April 4 and April 12, 2018. The defendant paid RMB 6,528.6 on March 30, 2018, RMB 19,585.8 on April 9, RMB 20,933.6 on September 12, and RMB 10,000 on February 2, 2019. The remaining payment of 30,000 yuan was demanded by the plaintiff for many times, while the defendant refused to pay for various reasons. The plaintiff believed that, according to the contract, 30% was paid in advance, and the remaining 70% was paid within one month. The plaintiff had fulfilled the contract, and the defendant had to pay the delay payment and attorney fees according to the contract. In order to protect the legitimate rights and interests of the plaintiff, a lawsuit was filed. In the lawsuit, the defendant paid the plaintiff a payment of 10,000 yuan on January 22, 2020.
The defendant, Vulkan Company, argued that it had no objection to the amount owed and agreed to pay. However, the calculation standard of the delay performance fee claimed by the plaintiff is too high and should be calculated according to the actual loss. Attorney's fees against plaintiff's claim agreed to be paid.
After trial, the court found the facts as follows: On March 24, 2018, the plaintiff and the defendant signed the Purchase Contract, stipulating that the defendant would purchase the plaintiff's brand new tires for a total amount of RMB 87,048. Payment method: 30% prepaid, 70% payment within one month. Liability for breach of contract: Party B (that is, the defendant) shall pay the payment for the goods as agreed, and the overdue payment shall pay Party A (that is, the plaintiff) a daily performance fee for delayed performance at 0.5% of the total overdue payment (up to 30% of the total overdue payment). If either party A or B violates this contract, the breaching party shall bear all the expenses paid by the other party to investigate the liability for breach of contract, including but not limited to all reasonable expenses such as attorney fees, litigation fees, preservation fees, industrial and commercial file adjustment and inquiry fees. After the contract was signed, the plaintiff delivered the goods to the defendant as agreed, and issued VAT invoices of RMB 21,762 and RMB 65,286 to the defendant on April 4 and April 12, 2018. The defendant paid RMB 65,286 on March 30, 2018, RMB 19,585.8 on April 9, RMB 20,933.6 on September 12, and RMB 10,000 on February 2, 2019. Due to the delay in payment of the remaining payment of 30,000 yuan by the defendant, and the plaintiff’s repeated appeals failed, he hired a lawyer to file a lawsuit in August 2019 and paid a lawyer’s fee of 3,000 yuan. In the lawsuit, the defendant paid RMB 10,000 for the goods on January 22, 2020.
The above facts are evidenced by the Procurement Contract, the special VAT invoice, the bank customer receipt, the lawyer's fee invoice and the statements of both parties submitted by the plaintiff.
This court believes that the Procurement Contract signed between the plaintiff and the defendant is an expression of the true intentions of both parties, and it is not contrary to the law, so it should be legal and valid, and both parties should fully perform their respective obligations in accordance with the contract. The plaintiff requested the defendant to pay the remaining payment of 20,000 yuan and the lawyer's fee of 3,000 yuan. The defendant agreed to pay, and this court confirmed it. As for the plaintiff's claim to calculate the delayed performance fee at 0.5% per day, it is obviously too high. According to the defendant's breach of contract, the court determined that the defendant should pay 6,000 yuan overdue as the late performance fee. Accordingly, in accordance with the provisions of Articles 107, 109 and 114 of the Contract Law of the People's Republic of China, the judgment is as follows:
1. The defendant, Yangzhou Vulkan Machinery Manufacturing Co., Ltd., shall pay the plaintiff Shanghai Mingsen Tire Co., Ltd. RMB 20,000 within ten days from the effective date of this judgment;
2. The defendant, Yangzhou Vulkan Machinery Manufacturing Co., Ltd., shall pay the plaintiff Shanghai Mingsen Tire Co., Ltd. RMB 6,000 for delay in performance within ten days from the date when this judgment takes effect;
3. The defendant, Yangzhou Vulkan Machinery Manufacturing Co., Ltd., shall pay the plaintiff Shanghai Mingsen Tire Co., Ltd. attorney fees of RMB 3,000 within ten days from the date when this judgment takes effect.
If the defendant fails to perform the obligation to pay the money within the period specified in this judgment, it shall pay double the debt interest during the period of delayed performance in accordance with the provisions of Article 253 of the Civil Procedure Law of the People's Republic of China.
The case acceptance fee was halved to 275 yuan, which was borne by the defendant, Yangzhou Vulkan Machinery Manufacturing Co., Ltd.
If you are not satisfied with this judgment, you may submit an appeal petition to this court within 15 days from the date of service of the judgment, and submit a copy according to the number of opposing parties, and appeal to the Shanghai No. 2 Intermediate People's Court.
Attachment: Relevant legal provisions
1. "Contract Law of the People's Republic of China"
Article 107 If a party fails to perform its contractual obligations or does not perform contractual obligations in accordance with the agreement, it shall bear the liability for breach of contract such as continuing to perform, taking remedial measures or compensating for losses.
Article 109 If one party fails to pay the price or remuneration, the other party may require it to pay the price or remuneration.
Article 114 The parties may agree that when one party breaches the contract, it shall pay a certain amount of liquidated damages to the other party according to the circumstances of the breach, and may also agree on a method for calculating the amount of compensation for losses arising from the breach.
If the agreed liquidated damages are lower than the losses caused, the parties may request the people's court or arbitration institution to increase them; if the agreed liquidated damages are excessively higher than the losses caused, the parties may request the people's court or arbitration institution to reduce them appropriately.
If the parties agree on liquidated damages for delay in performance, the breaching party shall also perform the debt after paying the liquidated damages.
2. "Civil Procedure Law of the People's Republic of China"
Article 253 If the person subject to execution fails to perform the payment obligation within the period specified in the judgment, ruling and other legal documents, he shall pay double the debt interest during the period of delayed performance. If the person subject to execution fails to perform other obligations within the period specified in the judgment, ruling and other legal documents, he shall pay a penalty for delay in performance.