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by:NJPE     2020-01-24
On the difference between the entry into force of 'signature and seal' and the entry into force of 'signature and seal' in procurement contracts, in the end, the sentence 'This contract shall take effect from the date of signature and seal' will be written, or 'This contract shall take effect from the date of signature and seal' will be written '. So what does 'signature and seal' and 'signature, seal' mean? It's just a difference in punctuation. Does this sentence mean that the contract needs to be 'signed and sealed' at the same time, or is the contract signed or sealed effective? Most people are stunned. It is better to look at the two judgments from the court and learn the difference between the 'signature and seal' and the 'signature and seal. On the premise that the contract does not stipulate the conditions for its entry into force, the contract law stipulates the entry into force of the contract as follows: article 32nd of the Contract Law: If the parties conclude the contract in the form of a contract, the contract is established when both parties sign or seal. However, according to the provisions of Article 44th of the contract law, if it is established according to law, it will take effect from the date of establishment, that is, if the contract is not stipulated or laws and regulations are not stipulated, the contract takes effect when signed or sealed. (I) 'Signature and seal' does not mean 'signature', 'seal' case: case number of import agency contract dispute between Beijing XXX Mall and China XXX Company and Beijing XXX Co. , Ltd :(ZXXX) Min Shen Zi No. ZX the retrial applicant of this case thinks that the agreement of 'this agreement takes effect after both parties' signature and seal, whether the effective conditions are the 'signature' and 'seal' of both parties must be at the same time! The Supreme Court held that according to the judicial appraisal conclusion during the first instance, the seal of XXX mall on the agreement and the seal of the industrial and commercial archives were stamped with the same seal, and XXX mall recognized the appraisal conclusion. The 'agreement' is stamped with the true official seal of XXX Mall. Although there is no signature of the legal representative or its entrusted agent of XXX mall, it is sufficient to show that the 'agreement' is the true expression of XXX mall. Although the 'agreement' only has the signature of the legal representative of XXX company, and there is no official seal of XXX company, XXX company does not deny the authenticity of the 'Agreement. According to this, it is not improper for the first and second instance judgments to determine that the agreement is true and effective. XXX Mall's reason for denying the authenticity and effectiveness of the agreement cannot be established. (II) 'Signature and seal' refers to the case of 'signature' and 'seal': Case Number of dispute over loan contract between XXX company and XXX branch of Shenzhen Development Bank :(ZXXX) The Supreme People's Court of the People's Republic of China, no. ZXX, believes that how to understand the name between the 'signature and seal' in the agreement, that is, whether the signature and seal should be both or not, the agreement can be deemed to be effective. It is believed that the 'signature and seal' in the agreement signed by both parties is a pause between parallel words, and the 'signature' in front and the 'seal' in the back are parallel phrases, it indicates that the signature and seal are in parallel relationship, and the agreement can only take effect if both signature and seal are available. The meaning of this agreement expressed by both parties is clear and true and shall be deemed valid. In addition, from the content of the 'repayment agreement' signed by both parties, it has specially set up a column with the official seal of both parties and the signature of the person in charge, in this agreement, XXX branch not only signed the name of the person in charge but also stamped the seal of the unit, while XX company only had the signature of the legal representative without the seal of the unit. As XXX company did not affix the unit seal on the repayment agreement and did not have the effective conditions agreed by both parties, XXX branch claimed rights according to the agreement and the factual basis was insufficient, the court of second instance did not support it. The first-instance judgment determined that the 'repayment agreement' had come into effect, and in accordance with the amount agreed in the agreement, XXX company's return of the loan principal was not appropriate and should be corrected. Of course, the party claiming that the agreement has not come into effect often only signs or seals, but when one party performs the contract and the other party accepts the performance of the contract, whether it is 'signature, seal' or 'signature and seal', in fact, according to article 37th of the 'contract law': the contract is concluded in the form of a contract, before signing or stamping, if one party has fulfilled its main obligations and the other party accepts it, the contract shall be established. It shows that both parties express their recognition of the validity of the agreement through actual actions, which is also in line with the real intention of the parties. However, the parties often cannot understand the real meaning of the relevant words when agreeing on such effective conditions, whether it is the 'seal signature' at the same time, or choose one of them, therefore, in the case of such cases, it is not possible to simply apply relevant judicial precedents. Specific cases still need specific analysis. To sum up, under normal circumstances, in the procurement contract, the 'signature and seal' takes effect, that is, the signatures or seals of the representatives of both parties take effect; The 'signature and seal' takes effect, that is, the representatives of both parties sign and seal. Discussion on current situation and prospect of China's mold industry in 2018
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