V. Case Analysis (Question 1: 16 points, Question 2: 9 points, ***25 points)
Case 1: Signing between Chinese Company A and Italian Company B A contract was signed from A to B to sell 100 barrels of salted mushrooms, delivered in two batches, with a total price of US$100,000, and the price conditions were CI F Genoa. The contract stipulates that the claim period is one week after the arrival of the goods. After the contract is established, the buyer should pay a deposit of US$10,000 within one month. After the seller delivers the goods, the deposit will be used as payment; if the seller fails to deliver the goods, the deposit will be doubled.
The first batch of goods was 50 barrels. The seller shipped the goods on schedule. However, the goods arrived at the port one week late. The buyer received a clean bill of lading from the seller. After the buyer’s own inspection, it was found that the 50 barrels of goods had The missing weight of 5 barrels is ***80kg (each barrel should be 50kg).
After the second batch of goods arrived at the port, detailed unpacking inspection revealed that each barrel of mushrooms was rotten and spoiled due to insufficient salinity. The buyer issued a commodity inspection certificate issued by an inspection agency. The two parties requested arbitration due to unsuccessful claims. The buyer requested the seller:
1. Compensation for the loss of US$1,000 due to the short weight of the first batch of goods; 2. Compensation for the delay in the arrival of the first batch of goods at the port. A fine of US$500 will be imposed;
3. When the second batch of goods is returned, the buyer shall be compensated for the profit loss of US$2,000, and the deposit of US$20,000 for this batch of goods shall be doubled.
Q: How to handle this case?
Case 2: The Bank of China decided to provide a huge commercial loan to a major domestic Sino-foreign joint venture project. Before signing the agreement, the bank staff asked a law firm how to adopt contract terms to ensure that the debtor repaid on schedule. Debt counseling. As a lawyer, how would you answer?
5. Case analysis (the first question is 16 points, the second question is 9 points, ***25 points)
Case 1:
Answer the question Key points:
1. If the seller ships the first batch of goods on time and obtains a clean bill of lading, it should be preliminarily determined that the seller has fulfilled the contract. After the buyer receives the goods, he will inspect the goods by himself, not by an independent inspection. If the organization participates in the inspection, its claims and claims for shortage of goods shall not be supported. (4 points)
2. If the seller ships the goods on time, the reason for the delay in arrival of the goods at the port does not lie with the seller. According to the CIF conditions, the risk of the goods transfers to the seller when it crosses the ship's rail. The claim for penalty due to the delay in arrival at the port should not be Be supportive. (4 points)
3. The second batch of goods has lost any use value, and the seller constitutes a fundamental breach of contract. The seller’s claim to return the goods, terminate this part of the contract, and compensate for loss of profits should be supported. (4 points)
4. The buyer’s request for double the return of liquidated damages is not supported because the contract stipulates that this will only be done when the seller fails to deliver the goods. The seller’s delivery is inconsistent, not non-delivery. goods. (4 points)
Case 2:
Answer points:
1. Guarantee terms should be stipulated, including property rights guarantee and credit guarantee; (3 points)
2. Provide statement guarantee terms. The borrower should guarantee that its operating conditions and financial status are good and true, and that its loan projects have been legally approved and authorized. (2 points)
3. Certain agreed matters should be stipulated. The lender shall not set up mortgage rights or other security rights on its assets, and the lender shall be guaranteed to be on an equal footing with other creditors when repaying the loan. (2 points)
4. Breach of contract and relief clauses should stipulate remedies for anticipated breach of contract and actual breach of contract. (2 points)
V. Case Analysis (Question 1: 10 points, Question 2: 15 points, ***25 points)
Case 1: China Company A and South Korean Company B established a joint venture to produce medical electrical appliances, with Han Fang X as chairman. The Chinese side used land, factory buildings and original equipment as investment, and the Korean side invested US$50,000. After five years of joint operation, due to poor economic performance, the Korean chairman signed a contract to contract the company to a Korean person without the consent of the Chinese side, and claimed to pay the Chinese side a certain amount of contract fees every year. In the next three years, no profits will be distributed to China. Because the contract fees were not paid, China sued.
Q: How to handle this case?
Case 2: There is a CIF contract that stipulates that cash should be paid against the shipping documents when the goods arrive at the port of destination.
One month after the contract was concluded, the goods were shipped, but could not reach the destination port due to distress during transportation. When the seller requires payment from the buyer with shipping documents such as the bill of lading, the buyer refuses to accept the documents and payment on the grounds that the goods cannot arrive at the port of destination. However, the seller believes that he has insured in accordance with the conditions stipulated in the contract, and the buyer should accept documents that comply with the contract and pay the price. Q: Does the buyer have the right to refuse to pay for the goods? (15 points)
5. Case analysis (each question is worth 25 points)
Case 1:
Answer points:
1. Sino-foreign joint ventures should be operated jointly by both parties. The contract in which the Korean chairman unilaterally contracted the enterprise to an individual violates the law and should be invalid. The contract should be terminated and the *** should be restored. Same business. (5 points)
2. Sino-foreign joint ventures should allocate profits and bear risks according to the investment ratio. Not only did the Korean side contract the enterprise to others, but the Chinese side was unable to obtain profits for a long time, which also violated the Sino-foreign joint venture Corporate Law. On the basis of ascertaining the final profits of the enterprise, the losses of the Chinese partners will be compensated. (5 points)
Case 2:
Answer points:
The buyer has no right to refuse to pay the price. The seller's claim is reasonable. (5 points)
According to the provisions of Inconterms2000, in CIF terms, the risk after the goods cross the ship's rail is borne by the buyer, unless the seller breaches its obligations under the contract. In this case, the seller did not breach the contract and submitted the shipping documents in accordance with the contract. The buyer should pay the seller. (5 points)
At the same time, according to the provisions of Inconterms2000, in CIF terms, the seller is responsible for handling marine cargo transportation insurance. Therefore, after the insurance policy is transferred to the buyer, the buyer can claim from the insurance company according to the insurance policy. (5 points)
7. Case analysis
1. In April 2006, China Dingtian Co., Ltd. signed a cold-rolled coil import contract with German Beveridge Co., Ltd. The contract stipulates that Beveridge Co., Ltd. will deliver the goods at the end of June 2006. Payment method is letter of credit. After the contract was signed, Dingtian Co., Ltd. issued a letter of credit as scheduled. However, until June 30, 2006, Dingtian Co., Ltd. had not received any notification from Beveridge Co., Ltd. that the goods had been shipped or were delayed in delivery. On July 3, Beveridge Co., Ltd. sent a fax to Dingtian Co., Ltd., saying that the originally scheduled cargo ship would not be able to sail until July 15 for some reason, and it could not guarantee delivery on time. It requested Dingtian Co., Ltd. to extend its credit The shipment of the certificate was extended to July 15th, the validity period was extended to July 31st, and Dingtian Co., Ltd. was required to reply to the fax on July 4th. Dingtian Co., Ltd. responded on schedule and informed Beveridge Co., Ltd. that the condition for amending the letter of credit was a 10% price reduction, otherwise the contract would be cancelled. However, Beveridge Co., Ltd. did not agree and still required Dingtian Co., Ltd. to extend the validity period of the letter of credit, otherwise the goods would be sold to others. Dingtian Co., Ltd. formally notified Beveridge Co., Ltd. of terminating the contract and filed a claim on July 5.
Question: 1. Is the final handling method of Dingtian Co., Ltd. reasonable? Why? 2． If Dingtian Co., Ltd.'s claim is established, how to compensate Dingtian Co., Ltd.?
Answer: 1. Dingtian Co., Ltd.’s final handling method is reasonable. Beveridge Co., Ltd.'s failure to deliver within the stipulated time constituted a breach of contract. Subsequently, the two parties did not reach an agreement on the changes to the contract (Dingtian Co., Ltd. agreed to postpone delivery, but the price requirement was reduced by 10%). In the original contract, While it was still valid, Beveridge Co., Ltd. stated that it would no longer perform its delivery obligations, which constituted a fundamental breach of the contract, so Dingtian Co., Ltd. had the right to terminate the contract. In addition, Dingtian Co., Ltd.’s right to claim compensation will not be lost by its exercise of remedies such as rescission of the contract. 2． Dingtian Co., Ltd. shall be compensated for various losses including profits suffered by Beveridge Co., Ltd. due to breach of contract, but such compensation shall not exceed the possible losses that the other party anticipated or should have anticipated at the time of contracting.
2. Yusuf Co., Ltd. of India exported cashmere shawls to McLellan GmbH of Germany and signed a CIF contract. Yusuf Co., Ltd. applied to the inspection agency for inspection before shipment. The inspection result was that the goods met the quality requirements of the contract.
Yusuf Co., Ltd. promptly issued a shipping notice to McClellan Co., Ltd. after shipment. However, the quality of the goods was reduced due to rainwater soaking during the sea voyage. After the goods arrived at the destination port, McClellan Co., Ltd. requested Yusuf Co., Ltd. to compensate for the price difference.
Question: 1. Should Yusuf Co., Ltd. be held responsible for the above losses? 2. Who will bear the risk of loss if the goods are soaked by sea water?
Answer: 1. Yusuf Co., Ltd. shall not be responsible for the above losses. According to "Incoterms 2000", under CIF terms, the risk of the goods transfers to the buyer after crossing the ship's rail at the port of shipment, unless the goods do not comply with the contract requirements at the time of delivery by the seller. Yusuf Co., Ltd. has delivered goods that comply with the contract and issued shipping notices in a timely manner, thus fulfilling its contractual obligations. After the goods cross the ship's rail, all risks and expenses are borne by the German company, so Yusuf Company should not be responsible for the above losses. 2. As stated above, the risk rests with McClellan LLC. If Yusuf Co., Ltd. has insured the cargo against water damage or all risks, McClellan Co., Ltd. may make a claim against the insurance company based on the insurance policy.
3. Dongyi Co., Ltd. offered to Golden Apple International Co., Ltd. "500 metric tons of rubber, US$545 per ton CFR China port, shipped in August, payment by L/C at sight, valid for return within 20 days." Golden Apple International Co., Ltd. immediately Called back, "10% price reduction, China International Economic and Trade Commission arbitration, other conditions accepted." Dongyi Co., Ltd. did not reply.
Q: Is the contract established? Why?
Answer: The contract is not established.
1. Dongyi Co., Ltd.'s offer is a firm offer, which means it is a valid offer. 2. Golden Apple International Co., Ltd.'s reply requesting "a 10% price reduction" is a substantial change to Dongyi Co., Ltd.'s offer and does not constitute a commitment and should be regarded as a counter-offer.
Four. The Ruan brothers sold 1,200 tons of first-grade rice, and the transaction was completed on FOB terms. The goods were inspected by a notary during shipment and met the quality conditions stipulated in the contract. The seller shall promptly issue a shipping notice after shipment. However, due to excessive waves during transportation, the rice was soaked in seawater and its quality was affected. When the goods arrive at the destination port, they can only be sold at the price of third-grade rice, so the buyer requires the seller to compensate for the price difference.
Q: Is the seller responsible for the loss and why?
Answer: The seller, the Ruan brothers, should not be responsible for this loss. According to "Incoterms 2000", under the FOB term, the seller bears the risks and expenses before the goods cross the ship's rail at the port of shipment, and the buyer bears the risks and expenses after the goods cross the ship's rail at the port of shipment, unless the goods do not comply with the contract requirements at the time of delivery by the seller. . In this case, the seller submitted goods that complied with the contract and issued a shipping notice in a timely manner. It has fulfilled its contractual obligations and the risk has been transferred to the buyer. Therefore, the seller is not responsible for the losses.
5. The shipper, Pearson Beer LLC, exported a shipment for liner transportation by the carrier, Government Commercial Ocean Lines of Canada. After the goods were loaded onto the ship, the carrier Canadian Government Commercial Shipping Company issued an ocean bill of lading to the shipper Pearson Beer Co., Ltd. The back of the bill of lading contained clauses applicable to the Hague Rules. However, the diesel engine exploded before the ship sailed, resulting in the ship not being able to sail on time and the cargo being damaged. After investigation, the cause was due to the negligence of an employee authorized by the captain when testing the diesel engine.
Q: Can the shipper Pearson Beer Co., Ltd. claim compensation from the carrier Canadian Government Commercial Marine Corporation for losses caused by failure to deliver?
Answer: The carrier, Canadian Government Commercial Shipping Company, should bear the liability for loss compensation. According to the provisions of the Hague Rules, the carrier must fulfill its responsibilities to make the ship seaworthy before and during the voyage. In this case, 1. The accident occurred before sailing; 2. The carrier failed to fulfill its duties because its employees were negligent; 3. Due to the above reasons, the ship was unseaworthy, the shipping schedule was delayed, and the cargo was damaged. Therefore, this case is a case where the carrier failed to fulfill its responsibilities to make the ship seaworthy before sailing, and the carrier's negligence in managing the ship cannot be used to exempt itself from liability.
6. Shipper Bridges Grain Company exported a shipment of cotton for liner transportation by carrier Mexican Government Commercial Marine.
After the cotton was loaded onto the ship, the carrier issued a sea bill of lading to the shipper. The back of the bill of lading contained clauses applicable to the Hague Rules. However, the oil pipe leaked before the ship sailed, causing damage to the cotton. After investigation, it was found that the oil pipe leaked due to the negligence of employees authorized by the captain when repairing the drainage pipe. The shipper requires the carrier to compensate for the losses caused by the failure to deliver the goods.
Q: Should the carrier be liable for compensation? Why?
Answer: The carrier, the Mexican Government Commercial Shipping Company, should bear the liability for loss compensation. According to the provisions of the Hague Rules, the carrier must fulfill its responsibilities to make the ship seaworthy before and during the voyage. In this case, 1. The accident occurred before sailing; 2. The carrier failed to fulfill its duties because its employees were negligent; 3. Due to the above reasons, the ship was unseaworthy, the shipping schedule was delayed, and the cargo was damaged. Therefore, this case is a case where the carrier failed to fulfill its responsibilities to make the ship seaworthy before sailing. The carrier cannot invoke the negligence of ship management in the exemptions to exempt itself from liability.
Seven. Company A is a British company, and Company B is a Sino-foreign joint venture located in Shanghai. A and B signed an international goods sales contract, and the contract stipulated that Company B would pay by letter of credit. After Company B paid, the goods were not mentioned with the bill of lading. After investigation, it was found that in the bill of lading submitted by A to the bank, the consignee column was filled in that did not meet the bill of lading requirements.
Q: Can you please judge whether the error in filling in the consignee column may be caused by one of the following situations? Is it the name of company A? Is it the name of company B? Or is it based on company A's instructions? Or is it based on instructions from Company B?
Answer: The name of Company A may be filled in. Because this is a named bill of lading, also called a non-negotiable bill of lading, which states that a specific person will receive the goods and is non-negotiable. Therefore, if Company A is filled in in the consignee column of the bill of lading to pick up the goods, buyer Company B will not be able to pick up the goods. As for other situations, buyer B can mention the goods, directly fill in the name of company B as the consignee, or fill in the instructions of company B without any doubt, and fill in the instructions of company A. A only needs to endorse the transfer to company B, and B can take delivery of the goods. , because this is an instruction bill of lading and can be endorsed and transferred.
8. The Prince was delivered to the lessee in the Port of Hamburg on March 1, 1990, and returned to the ship owner in the Port of Shanghai, China on March 5, 1991. The charter period exceeded the 10-month charter period stipulated in the charter party. Due to the increase in the market rental rate, the ship owner requires the charterer to pay the rent for the extended charter period at the market rental rate when the ship should have been redelivered.
Q: According to the provisions of my country’s Maritime Law, in this case, how should the overdue redelivery rent be calculated? Is it calculated based on the market rental rate when the lease term expires on January 1, 1991? Is it calculated based on the market rental rate at the end of the last voyage of the ship on December 15, 1990? Or is it calculated based on the rental rate stipulated in the contract? Or is it calculated based on the market rental rate when the ship was redelivered on March 5, 1991?
Answer: This case belongs to a time charter party. According to Article 143 of my country’s Maritime Law, “After reasonable calculation, the date for completing the last voyage is approximately the redelivery date stipulated in the contract, but if it may exceed the redelivery date stipulated in the contract, the charterer has the right to use the ship beyond the time limit to complete the voyage. During the overdue period, the lessee shall pay the rent according to the rental rate stipulated in the contract. If the market rental rate is higher than the rental rate stipulated in the contract, the lessee shall pay the rent according to the market rental rate. "Therefore, in this case, the lessee overdue the lease. The ship shall compensate the ship owner for losses, and the rental rate during the overdue redelivery period shall be calculated based on the market rental rate when the charter period expires on January 1, 1991.
Nine. my country Wanlijia Enterprise Co., Ltd. imported a batch of newsprint from Canada, 300 boxes, shipped by sea. During transportation, some fuel leaked out due to a rupture in the oil pipe inside the ship, contaminating the newsprint. On July 18, 2004, Qingdao Port was unloading and found that 100 boxes were lost. The goods are insured against water damage. On September 25, 2006, he requested compensation from the insurance company. The insurance company refused to pay.
Q: Is it reasonable? Why?
Answer: The insurance company is justified in refusing compensation: 1. Ping An insurance covers the total loss of the insured goods due to: (1) natural disasters such as severe weather, lightning, tsunamis, earthquakes, floods, etc.; (2) transportation vehicles running aground on rocks, sinking, collisions, fires, explosions, etc. Total or partial loss of cargo caused by accidents; (3) Partial losses caused by severe weather and other natural disasters at sea before and after the above-mentioned accident occurred; (4) One or several pieces of cargo fell into the sea during loading and unloading. All or part of the loss; (5) Reasonable expenses incurred by the insured to rescue the goods, etc. In addition to covering various liabilities of Ping An Insurance, water damage insurance also covers some losses of insured goods caused by natural disasters such as severe weather. This loss is not covered by insurance. 2． The claim period has expired. The claim period starts from the time when the insured goods are completely unloaded from the transport vehicle at the final unloading place, and shall not exceed 2 years at most.
10. The cargo ship was sailing from Tianjin to Malaysia. On the way, a fire broke out in the cargo hold. Because the fire was so fierce, it gradually spread to the engine room. The captain found that ordinary fire-extinguishing equipment was no longer effective and decided to fill the cabin with seawater. The fire was eventually put out, but the engine room was damaged and the voyage was unable to continue. So we docked for repairs. Afterwards, it was found that the losses included: 2,000 boxes of goods were completely burned, 800 boxes of goods were damaged due to flooding and fire extinguishing, the front deck and main engine were burned, additional expenses for tugboats, additional fuel costs, and increased wages for relevant personnel.
Question: 1. What is ***common average and separate average? 2． Which losses in this case are separate average losses?
Answer: 1. General average means that during maritime transportation, ships and goods are exposed to common dangers, and the captain intentionally and reasonably makes special sacrifices or pays special expenses for the sake of general safety. Separate average refers to the partial loss of goods caused by insured risks that does not fall under general average. 2． The 2,000 boxes of cargo that were completely burned, the burned forward deck and the main engine were all reported as separate average losses. The remaining losses are general average.
Eleven. my country's Jialitong Co., Ltd. and a certain country's Hurley Co., Ltd. signed a GFR contract to purchase 500 tons of cotton on October 20, 2003. The letter of credit issued by Jialitong Co., Ltd. stipulates that the shipping period is from February 1 to February 15, 2004. Because the "Prince Charming" chartered by Hurley LLC to transport cargo encountered a hurricane on its way to a foreign port, loading was not completed until February 20, 2004. The carrier issued a bill of lading consistent with the terms of the letter of credit after obtaining a letter of guarantee issued by Hurley LLC. The Prince Charming departed the port of shipment on February 21. Jialitong Co., Ltd. has insured the goods with water damage insurance. On February 28, 2004, the "Prince Charming" caught fire while passing through the Dardanelles Strait, causing some of the cotton to be burned. The captain caused some cotton to become wet and damaged during the fire-fighting process. Due to the delay of the ship at the loading port, the ship caught up with the drop in cotton prices when it arrived at its destination. Jialitong Co., Ltd. had to drop the price significantly when selling the remaining cotton, which caused a great deal to Jialitong Co., Ltd. loss.
Question: 1. What kind of loss is the cotton burned on the way and who should bear it? Why? 2． Can Jialitong Co., Ltd. recover from the carrier the losses caused by the drop in cotton prices? Why?
Answer: 1. Burnt cotton belongs to separate average and should be compensated by the insurance company. Because the buyer has insured the goods with water damage insurance. Wet damaged parts belong to general average damage. 2． Losses caused by falling cotton prices can be recovered from the carrier. Because the carrier has backdated the bill of lading. The seller failed to complete the shipment before or on the shipment date specified in the letter of credit, and the carrier failed to indicate it truthfully. (As for the letter of guarantee, the Hague Rules do not recognize the letter of guarantee between the shipper and the carrier, but the Hamburg Rules legalize it and stipulate that the shipper issues a letter of guarantee to the carrier to bear liability for obtaining a clean bill of lading. The shipper and the carrier It is valid between parties, but is invalid against third parties including the transferee of the bill of lading. In the event of fraud, the carrier shall be liable for compensation and cannot enjoy the benefit of limitation of liability stipulated in the Convention. For example, according to the "Hamburg Rules", the guarantee is based on the true intention of both the shipper and the carrier and is valid for both parties. The carrier can recover compensation from the shipper, that is, the seller, after compensating the buyer's losses. However, my country's "Maritime Law" does not provide for guarantees. Not explicitly acknowledged.
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Twelve. Country A notifies Country B that it bans the import of mutton from Country B on the grounds that the hormone content of mutton exceeds the standard and affects the health of its citizens. After investigation in country B, it was found that the hormone content of the mutton sold in country A was the same as that of the mutton in country B. It was also discovered that country A continues to import mutton of the same quality from country C. Country B believes that country A has violated GATT principles and their interests have been infringed. Country A countered that the measures they took did not violate GATT principles and were allowed by general exceptions.
Question: 1. Does country A's actions violate the principles of GATT? Which principle was violated? Why? 2． Is the reason for Country A’s rebuttal correct? Why?
Answer: 1. It violates the most-favored-nation principle and the national treatment principle of GATT. Country A bans the import of mutton from country B on the grounds of national health, but imports mutton of the same quality from country C. This practice is discriminatory treatment in implementing restrictions on the same or similar products from different member states. At the same time, the same mutton is also sold in country A. This ban on the import of mutton from country B is also a protection of domestic products, discrimination against foreign products, and failure to implement equal treatment between domestic products and foreign products. 2． Country A’s objection is not valid. Because although country A invokes the general exceptions of Article 20 of GATT and prohibits the import of mutton from country B on the grounds of protecting national health, it allows the sale of the same products domestically and imports products of the same quality from country C. This falls under the general exceptions of Article 20 of GATT. The abuse of exceptions and the measures taken constitute arbitrary and unreasonable differential treatment, which in disguise restricts international trade.
Thirteen. Yaboer Co., Ltd. in Country A applied to register the "HWH" trademark in Country B on March 12, 2006. On April 3, 2006, Yaboer Co., Ltd. in Country A applied to register the "HWH" trademark in Country C, and asked lawyer Mr. Smith to represent him in related matters. The trademark management agency of country C rejected the application on the grounds that someone had already filed the same application on April 1, 2006. On June 7, 2006, Yaboer Co., Ltd. in Country A applied to register the "HWH" trademark in Country D. The trademark management agency of country D rejected the application on the grounds that Yabor Co., Ltd. of country A did not apply for the right in its own country. On July 2, 2006, Yabor Co., Ltd. of Country A applied to register the "JKL" trademark in Country D. This trademark has obtained legal rights in Country A. The trademark management authority of country D rejected the application on the grounds that the application was not in compliance with the trademark law of country D. Note: The above countries are all members of the Paris Convention.
Question: 1. What is priority? What documents should be submitted to apply for priority? 2． When applying to register the "JKL" trademark in country D, can the trademark management agency of country D reject the application? Why?
Answer: 1. Applicants who have formally filed an invention patent, utility model patent, design patent or trademark registration in one member state shall enjoy priority within the prescribed period if they file the same application in other member states. In other words, the same application to another person during the priority period cannot grant industrial property rights, which are granted to the priority holder. Submit a statement of priority of the application and copies of previous applications. 2． Country D cannot reject the application. Because according to the provisions of the Paris Convention, if a trademark is registered in the country where it belongs, other member states should also accept applications for registration and provide protection.
Fourteen. Dayas Company in Country A introduced an automatic production line from Amazon Co., Ltd. in Country B, which involved a patented technology. The board of directors of Dayas Company asked the company's legal counsel Mary Rand to explain the matter and discussed the use of patents. The company's legal advisor Mary Delan introduced the types of license agreements based on different subjects. Depending on the scope of use of the license agreement, its usage rights are also different. Finally, propose the main terms that a license agreement should include. Amazon Co., Ltd. in Country B proposed that the license agreement must state: 1. The importing party cannot conduct further research on the technology; 2. The importing party must hire professional and technical personnel from Amazon Co., Ltd. in country B; 3. During the production process, in order to protect the integrity of the technology, no changes can be made to the existing technology, even if it is not suitable for local conditions; 4. During the production process, raw materials must be purchased from TWT Company in Country B. The technical staff of Dayashi Company in Country A believe that purchasing raw materials from TWT Company in Country B is not necessary.
Question: 1. If you were Mary Rand, the company's legal counsel, how would you describe the types of licensing agreements based on the subject matter? 2. If you were Mary Rand, the company's legal counsel, how would you describe the scope of use of the license agreement?
Answer: According to the scope of the license agreement and the scope of use rights, the types of license agreements are: Exclusive license agreement: refers to the transferee’s right to the transferee within the time and geographical scope specified in the agreement The licensor has the exclusive right to use the technology, and the licensor cannot transfer the right to use the technology to a third party. At the same time, the licensor cannot use the transferred technology on its own within the time and geographical scope. Exclusive license agreement: means that within the time and geographical scope specified in the agreement, the transferee has the right to use the transferred technology. The licensor cannot transfer the right to use the technology to a third party, but the licensor itself still retains the right to use the technology. Temporal and geographical rights of use. General license agreement: means that within the time and geographical scope specified in the agreement, not only the transferee can use a certain technology, but the licensor can also use or license a third party to use a certain technology. Cross-licensing agreement: It means that the technology licensor and the transferee exchange their respective technology usage rights with each other for the other party's use as stipulated in the agreement. Such license may be exclusive or exclusive, paid or free. Sub-license agreement: means that the transferee in the agreement can transfer the transferred technology use rights to a third party.
Fifteen. Isaiah Co., Ltd. is a wholly foreign-owned subsidiary established in China by the multinational company Sibir Co., Ltd., specializing in food processing and export. Isaiah Co., Ltd. declared bankruptcy due to a serious financial crisis. Its creditors filed a lawsuit in court, requiring the parent company Sibiya Co., Ltd. to assume responsibility for the debts of Isaiah Co., Ltd. and providing evidence: First, Sibiya Co., Ltd. Co., Ltd.’s claim rights amount to 45% of all liabilities of Isaiah Co., Ltd.; secondly, 85% of the export sales products of Isaiah Co., Ltd. are sold to Sibir Co., Ltd., and their prices are lower than those of other buyers. More favorable; thirdly, Isaiah Co., Ltd. paid a series of advance payments to other affiliated companies of Sibir Co., Ltd. in China, while allowing the parent group as the debtor to delay the payment of other debts.
Q: Is Sibir Co., Ltd. liable for the debts of Isaiah Co., Ltd.? Why?
Answer: There are currently three views and practices regarding the responsibilities between parent and subsidiary companies: 1. The principle of limited liability; 2. The principle of overall responsibility; 3. direct liability in special circumstances. In this case, if the above evidence is verified, it shows that the parent company Sibir Co., Ltd. has committed fraud in the form of its subsidiary Isaiah Co., Ltd., that is, it defrauded the creditors of Isaiah Co., Ltd. to evade debts. Creditors may hold Sibir AG liable for the debts of Isaiah Limited Liability. Sibir Co., Ltd. shall be liable for the debts of Isaiah Co., Ltd. 1． It should be made clear that as a wholly-owned subsidiary of Xibir Multinational Corporation in China, Isaiah Co., Ltd. has a legal nature of being a Chinese legal person in the form of a limited liability company, that is, as a shareholder, Xibir Co., Ltd. is limited to the amount of its capital contribution. Asia Limited Liability Company shall bear the liability, and Asia Asia Limited Liability Company shall bear liability for the company's debts with all its legal person assets. Therefore, the creditors of Isaiah Limited Liability Company can only claim their rights against Isaiah Limited Liability Company, and Isaiah Limited Liability Company can only bear debts to creditors to the extent of its own assets. 2. However, according to the provisions of the "Foreign-Invested Enterprise Law" and its implementation rules, foreign-invested enterprises must abide by Chinese laws and regulations and must not harm China's social public interests; operate and manage independently without interference; and may not handle matters on their own during bankruptcy and liquidation. Business property. First of all, the relevant actions of Isaiah Co., Ltd. violated the laws of our country. Secondly, Sibir Multinational Corporation is the sole shareholder of Isaiah Co., Ltd. and plays a decisive role in the production and operation management of its subsidiaries. It uses the internal connections of multinational companies to control and improperly control Isaiah Co., Ltd. The intervention caused it to engage in a large number of abnormal related transactions, transfer profits and assets, neglect to exercise its due claims, and evade debts. Eventually, it went bankrupt due to financial crisis and affected the creditors of Isaiah Co., Ltd. to realize their claims. Therefore, in addition to registering claims with the liquidation organization in accordance with the law, creditors have the right to require Xibil Co., Ltd. to assume debts, and Xibil Co., Ltd. shall bear joint and several liability.