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Lawyer's Letter--给老外的律师函(1)

LAWYER'S LETTER

Re: the so called “outstanding Payment” requested by Mr. John Stone and East Law Firm

 

                                                                                                                           May 3, 2008

Dear Mr. John Stone and East Law Firm,

With respect to the so-called “outstanding payment” requested by Mr. John Stone (hereinafter referred to as Mr. Stone) and East Law Firm (hereinafter referred to as East) with a letter in the name of East but with a chop of the Finance Department, please initially reply to the following questions:

1.      What’s the legal status Mr. Stone has in China?

From the very beginning of contact Mr. Donald Ben (the former General Manager of ASP company, hereinafter referred to as Mr. Ben) only knew Mr. Stone was a BUSINESS CONSULTANT. But what company has Mr. Stone been working for in China? Pursuant to the Provisions for the Management of Obtaining Employment in China for Foreigners (jointly issued by the Ministry of Labor, the Ministry of Public Security, the Ministry of Foreign Affairs and the Ministry of Foreign Trade and Economic Cooperation in 1996), a foreigner should take the Employment Permission License issued by the Ministry of Labor and the Employment Certificate issued by the local labor administration prior to work in China, otherwise his employment will be illegal and he will be fined and repatriated to his native country. Would you please not treat it as an offense that we ask whether Mr. Stone has gone through the legal formalities and got such License and Certificate?

2.      What’s the relationship between Mr. Stone and East?

Is Mr. Stone a Business Consultant or a broker of East? Overall one point is definite that Mr. Stone cannot be a lawyer practicing in East. If Mr. Stone is an employee of East, does Mr. Stone hold Employment Agreement registered with Xiamen Labor Bureau? If not, can Mr. Stone canvass legal and/or any other business in the name of East?

3.       What service has Mr. Stone and/or East furnished to Mr. Ben and/or ASP?

Based on the communication shown by Mr. Stone on Dec. 10 2007 between Mr. Stone and Mr. Ben, from the beginning to the end, the two parties negotiated only by emails, and actually the business was not concluded due to the disagreement of service fees and payment condition. Under this circumstance, Mr. Stone unilaterally tried to start the work and issued invoices for down payment with the amount Mr. Ben had not accepted. Article 33 of the Contract Law of the people’s Republic of China (hereinafter referred to as the Contract Law) stipulates that “where the parties conclude a contract in the form of a letter or data-telex, etc., one party may request to sign a letter of confirmation before the conclusion of the contract. The contract shall be established at the time when the letter of confirmation is signed”. Because Mr. Stone and Mr. Ben and/or ASP have never signed such a letter of confirmation, the contract has not been established from the beginning.

Another odd matter is that Mr. Ben only asked Mr. Stone to translate the Supply Agreement, but Mr. Stone said they adjusted the Chinese version and English version and even reviewed the Agreement. Article 252 of the Contract Law stipulates “the contents of a work contract shall contain such clauses as the object, quantity, quality, remuneration and method of the work, supply of materials term of performance, standards and method of inspection”. But only the term of object (translating the original document into Chinese) was confirmed by the two parties. Who authorized Mr. Stone to adjust and review the Agreement? Pursuant to Article 253 of the Contract Law that “the contractor shall use its own equipment, technology and labor force to complete the principal part of the work, except as otherwise agreed upon by the parties. Where the contractor assigns the contracted work to a third party for completion, the contractor shall be responsible to the ordering party in respect of the work results completed by the third party. Where the assignment is without the consent by the ordering party, the ordering party may rescind the contract”, did Mr. Stone himself make the translation? If not, has Mr. Ben and/or ASP agreed Mr. Stone to assign the translation work to a third party? Further more, Article 256 of the Contract Law stipulates “the contractor may not unilaterally replace any materials supplied by the ordering party, and may not replace the components which do not need to be repaired”. To the nature of translation, the translated version shall be in the same meaning as the original document, any change of meaning or adjustment of content constitutes an action of breach. And if the Agreement had been adjusted and reviewed, while Mr. Stone had no power to do this according to Chinese law, which lawyer did these? Because the only party Mr. Ben negotiated with was Mr. Stone, had that lawyer been authorized by Mr. Ben and/or ASP? If not, that lawyer had no right to adjust and review the Agreement without the written authorization of the client. Pursuant to Article 9, 10 and 46 of the Consumer’s Rights and Interests Protection Law of the People’s Republic of China that the consumer has the right, at his or her will to choose the service and determine whether to accept any service, and can refuse the forced transaction of which the terms such as price and quality etc are not equitable and have not been agreed by the consumer, because the service of adjustment and review were not chosen by ASP, ASP has the right to refuse the adjusted version and not pay for adjustment and review of which the nature is a kind of forced transaction. If such a lawyer did these workwhere are the legal opinion for the adjustment and review indicating which part(s) has been adjusted and what’s the reason evidenced by Chinese law?

In one of the invoices issued by East with an amount of RMB22,200.00, the item charged was the perennial legal consultant fee (from May 1 2006 to May 1 2007), had ASP signed A Yearly Legal Contract with East? Who was the appointed lawyer? If no such a Contract existed and no such legal service was furnished, how could East charge ASP such a strange fee?

4.      Has Mr. Stone and/or East delivered the work result to Mr. Ben and/or ASP?

Article 261 of the Contract Law stipulates “where the contractor completes the work, it shall deliver the results of the work to the ordering party, and submit necessary technical materials and the relevant quality certificates. The ordering party shall examine and accept the results of the work”. Even though Mr. Jim Liu (hereinafter referred to as Jim) signed a receipt to Mr. Stone indicating that he received, on Nov. 10 2007 a Supply Agreement between ASP and Ann and a drafted Supply Agreement between ASP and Ann, it shall not be deemed that Mr. Stone had delivered the completed work. Firstly, Mr. Ben and/or ASP had not entrusted any party including East to adjust and/or review the Agreement, it’s not the proper service Mr. Stone offered; secondly, in the email from Mr. Ben to Mr. Stone on May 22 2006, Mr. Ben said “the final payment will be made after the final contract version is done”, it’s evident that even the copy dated May 22 2006 received by Jim was not the final contract version; thirdly, ASP has refused to accept these documents Jim received and tried to transfer. In fact, ASP has never received the delivery of completed work and the relevant quality certificates from Mr. Stone and/or East, without mention of having inspected and/or accepted and/or used such a version of translation and/or adjustment. In addition, the amount for translation service stated in the invoice dated 9th July 2007 and issued by East is RMB 20,000.00, but ASP has made an excessive down payment of RMB 25,200, how does ASP owe an outstanding payment of RMB 16,800?

 

In conclusion, We hope to make clear the legal status of Mr. Stone in China as well as the relationship between Mr. Stone and East; the work contract between Mr. Stone and Mr. Ben and/or ASP has not been established without a letter of confirmation to the emails; Mr. Stone has never delivered the completed translation and relevant quality certificates to Mr. Ben and/or ASP; East has never furnished Mr. Ben and/or ASP with legal service (adjustment, consultation etc) under authorization, but East received a total amount of RMB 25,200 as legal service fee (in fact, ASP only deposited this down payment to the account of East according to Mr. Stone’s instruction; no any business relation exists between ASP and East.). Consequently ASP never owes an outstanding payment to Mr. Stone and/or East; in reverse, ASP will refuse any late and un-contracted delivery from Mr. Stone, and Mr. Stone and East shall refund all the down payment to ASP on a related basis.

Please pay high attention to the above issues and properly settle the case within the law of the People’s Republic of China.

 

Sincerely,

Sean Law, Attorney at Law of

Fujian Cheng Yi Law Firm

Under authorization and on behalf of

ASP (Xiamen) Co., Ltd

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