The Foreign Trade Agency Contract With The Export Of Real Goods Should Be Protected.

< p > < strong > case < /strong > /p >

< p > 2006, Beijing Bo Chuang Chuang Chuang Technology Co., Ltd. (hereinafter referred to as "Bo Chuang") signed a cooperation agreement with the Limited by Share Ltd of Baoli civil explosive technology group (hereinafter referred to as the civil explosive company). It agreed to cooperate in export rig and supporting equipment, and the civil explosive company was responsible for signing and executing foreign trade contracts and domestic purchase contracts, but the relevant contracts directly constrain the company and foreign suppliers and domestic suppliers.

The company is responsible for all the expenses required for export performance, fulfil all kinds of obligations agreed with foreign investors, and is responsible for contacting the previous projects and contacting suppliers to ensure the quantity, quality and delivery date of the goods comply with the provisions of the foreign trade contracts.

It is also agreed that the civil explosive company receives the management fee of 0.6% of the total amount of the foreign trade contract; after the foreign exchange payment is completed, the civil explosive company will pay the corresponding payment according to the domestic purchase contract, deduct its management fees and related expenses, the balance and all the export tax rebates will be paid to Bo Chuang company within five working days.

Since then, the company has fulfilled its obligations under the "cooperation agreement", and the civil explosive company has signed the internal and foreign trade contracts with the domestic suppliers and the foreign businessmen respectively, and has fulfilled the actual export tax refund.

However, the company did not pay all the export balance and export tax rebate to Bo Chuang company. The company has sued the civil explosive company to pay the above two payments and the corresponding interest.

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< p > < strong > referee < /strong > < /p >.

< p > the first instance of the second intermediate people's Court of Beijing held that: the export business of the case is real, and it is not the case that Bo Chuang company has completed the nominal operation of the company under the guise of civil explosive company. There is no violation of the state's export tax rebate. The cooperation agreement is effective.

Bo Chuang company proved that its compliance with the relevant obligations under the "cooperation agreement", and the civil explosive company should pay the corresponding amount to Bo Chuang company.

The civil explosive company and Bo Chuang company agreed to pay the export tax refund to the Bo Chuang company under the export contract, which is the act of disposing of their own property and does not violate the mandatory provisions of the laws and administrative regulations.

The company ordered the company to pay the balance of export items, export tax refund and corresponding interest to Bo Chuang company.

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< p > civil explosive company disagrees, filed "a href=" //www.sjfzxm.com/news/index_c.asp "appeal" /a >.

The second instance of the higher people's Court of Beijing held that: the civil explosive company is a state holding enterprise. According to the agreement of cooperation, the proceeds obtained from the agreement are only 0.6% of the contract fee, which is disproportionate to the huge contract risk it bears, and constitutes the export of the interests of the state assets, which is illegal for the same purpose.

The export business under the "cooperation agreement" is issued by the State Administration of Taxation and the Ministry of Commerce jointly issued by the Ministry of Commerce and the Ministry of Commerce of the people's Republic of China ([2006]24), "no matter how to further regulate the order of foreign trade export business and strengthen the management of tax refund (Exemption) for Exported Goods". The second paragraph, second paragraph, states that the export tax rebate can not be applied for.

Therefore, the cooperation agreement is invalid.

The change of judgment dismissed the main claims of the company.

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< p > Bo Chuang company applies for retrial to the Supreme People's court. The Supreme People's court ordered the case to be reviewed.

The retrial of the Supreme People's court held that there was real export of goods in the case, and the civil explosive company did not provide sufficient evidence to prove that the export business of the case was its own business. The cooperation agreement was not a "a href=" http:// www.sjfzxm.com/news/index_c.asp "contract > /a", which was signed for the purpose of obtaining the illegal export tax rebates of the state. It does not exist in any case stipulated in the fifty-second law of the contract law and is effective.

According to the agreement of cooperation, civil explosive companies should pay less than a href= "//www.sjfzxm.com/news/index_c.asp" > export items < /a > surplus, export tax refund and corresponding interest to Bo Chuang company, so the two trial shall be revoked and a judgment shall be made to maintain the first instance judgment.

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< p > < strong > comment < /strong > < /p >.

< p > the focus of this case is: how effective is the cooperation agreement? How should the export tax refund of the company be handled? < /p >

< p > 1., from the content of the "cooperation agreement", the agreement is a typical foreign trade licensing system contract.

Under the circumstances of the original system of foreign trade licensing, China's foreign trade agency is very common.

Although the revised People's Republic of China foreign trade law, which was implemented in July 1, 2004, has abolished the foreign trade licensing system, it still stipulates that "foreign trade operators can accept others' entrustment and handle foreign trade business within their business scope".

In this case, the "cooperation agreement" is the foreign trade agency contract signed by the civil explosive company as the trustee, the company as the client, and the two sides to achieve the purpose of cooperation in the export of goods.

The contract is the true intention of both parties. The content does not violate the mandatory provisions of China's laws and administrative regulations, so it should be effective.

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< p > 2. the second instance found that the reasons for the invalidation of the cooperative agreement were mainly two: first, the purpose of the cooperation agreement on the export of the interests of the state assets was illegal; two, the cooperative agreement had the non legal purpose of obtaining the export tax refund for the business which could not declare the export tax rebate.

On the first point, according to the "cooperation agreement", the company established the source of goods, acquired the export products and confirmed the export issues with foreign investors. Only in the name of the civil explosive company, it signed the purchase contract and signed the export contract to the outside world. In fact, the obligation to fulfill the contract was mainly completed by Bo Chuang company, and the civil explosive company received a management fee from Bo Chuang company according to a certain proportion of the foreign trade contract amount. The rights and obligations between the client and the trustee were not unbalanced. This is also a general practice under the foreign trade agency system in China. Such a form of trade does not violate the provisions of the laws and administrative rules of our country. Therefore, it can not be considered that the interest of the state assets is exported and that the purpose of the contract is illegal.

On the second point, the civil explosive company has not given sufficient evidence to prove that the export business of this case is its own operation, and the company has produced sufficient evidence to prove that it has actually fulfilled its main obligations under the domestic and foreign trade contracts. The legal status of the company is the trustee in the foreign trade agent contract, not the self operated exporter.

The export tax rebate is a measure taken by our country to encourage exports. Under the export business, the export contract is actually fulfilled and has been fulfilled. There is real export of goods. The main body of the tax rebate is a civil explosive company that has signed an export trade contract with foreign investors. Therefore, the export tax rebate of the civil explosive company is in conformity with the provisions of our laws and administrative regulations.

Section 2006 of the Inland Revenue Department [24] is not an administrative regulation, and its main purpose is to combat fraudulent tax rebates in the form of "four inactivity".

The cooperation agreement provides that the civil explosive company will pay all the tax refund to Bo Chuang company within five working days after receiving the export tax refund under the foreign trade contract. It is a voluntary disposition of the export tax refund obtained by the parties in accordance with the law, and it does not cover up the illegal purpose in legal form.

Therefore, the second instance found that the invalidation of the contract lacked the facts and legal basis.

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