13 2月 疫情熱點丨疫情之下合同不能依約履行，出口企業如何在法律層面進行自救？
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.
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.
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.
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.
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.