112021.2.23 case handling practice: how can construction enterprises correctly mail claim reports and other important documents? In the field of construction engineering, it is not uncommon for the employer to reject the claim report, settlement statement, contact list and payment reminder delivered by the construction enterprise, so the construction enterprise chooses to send the above important documents by mail
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However, due to the negligence and improper grasp of the integrity of the evidence chain, the construction enterprise can not prove that it has mailed the important documents such as the reminder letter to the other party due to improper selection of the express delivery unit and non-standard operation when mailing the important documents such as the reminder letter, which may lead to the loss of rights or missing the limitation of action
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So for the construction enterprises, how to mail the important documents such as reminder letter? 1、 When the enterprise delivers important documents to the opposite party, for the sake of fixed evidence, it should choose China Post (EMS) express service as the first choice
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In combination with the Supreme People’s court’s “letter of request for instructions on whether the creditor can claim the right against the guarantor when the creditor issues the overdue loan collection notice to the guarantor by express mail during the guarantee period but lacks the evidence of the guarantor’s signing or rejecting the mail” [(2003) min er TA Zi No
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6] and relevant judicial cases, the express mail of the post office should be the first choice for enterprises to send letters If an important document is sent to the other party and non post offices such as Shunfeng, Yuantong and Zhongtong are selected, the legal effect may be denied by the court
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02 express face sheet filling in express face sheet is the core evidence to prove the mailing process
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The standardized filling in of face sheet can eliminate a lot of later proof work
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According to the face sheet, it can prove that the enterprise has mailed specific documents and materials to a specific counterpart, and has corresponding legal effect
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The requirement of filling in the name of the item in the receiving information column of the mailing information column is to let the addressee know the specific content of the mail and the purpose of the sender to send the document only by looking at the “content name”
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In this way, if there is a dispute later, the express delivery sheet can also prove the specific content of the mail
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03 preservation of mailing records 1
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Keep the original of the documents sent out
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The company shall keep the original of all the important documents sent out, so as to check the contents of the documents sent out at that time in the future
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2
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Keep the original of the third copy of EMS face sheet (retained by the sender)
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3
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Query and print the mailing record
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After the mail is sent out, the company should promptly send it through the “global express mail” website (website: http://www.ems.com.cn/ ）Real time tracking of e-mail to understand the delivery of e-mail
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After the mail is delivered, the detailed list page is printed and filed (EMS query records are generally kept for at most one year)
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4
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Request receipt service and postmark
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Usually, when EMS is sent to the post office, it will be postmarked to prove the actual mailing time
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But at present, most companies send it through the way of door-to-door collection by EMS postman, so they can ask EMS postman to provide the receipt with postmark after sending it
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5
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Properly keep the mail rejected by the recipient
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For the mail rejected by the recipient, there will be a receipt indicating the reason for return (such as rejection, wrong address, etc.) for the mail returned by the post office
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For the mail marked “rejected”, the original mail should be properly kept and not opened, which may be used as effective evidence in the future
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04 other precautions when enterprises mail very important documents, or because of the particularity of the mail content, they can not list the contents of the mail in the name of the inner parts, they can also choose the notarized way to mail, and the notary shall notarize the whole process of the mail, so as to achieve the effect of evidence preservation
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2、 The ruling rule of postal service [ruling rule 1] sends mail to the other party in the form of non post office
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If it can not be proved that the mail arrived or should arrive at the other party, it will face the legal risk that the limitation of action can not be interrupted
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[court] Supreme People’s Court [case No.] (2015) MSZ No
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134 [focus of dispute] does Danyang Agricultural Bank, as a creditor, send mail to the debtor through Shunfeng company, have the legal effect of interrupting the limitation of action? [gist of judgment] this court holds that the legal basis for Danyang Agricultural Bank to apply for retrial is mainly the provisions of Article 10 of FA Shi (2008) No.11 and reply (2003) min Er TA Zi No.6
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According to Item 2 of Article 10 of FSHI (2008) No.11, if one party claims rights by sending letters or data messages, and the letters or data messages arrive or should arrive at the other party, it shall be deemed as “the party makes a request” in Article 140 of the general principles of the civil law, resulting in the effect of interruption of limitation of action
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The main content of (2003) min Er TA Zi No.6 reply is as follows: the creditor sends the overdue loan collection notice to the guarantor by express mail through the post office
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If the creditor can provide the stub and content of the express mail, unless the guarantor has evidence to the contrary to overturn the evidence provided by the creditor, it shall be deemed that the creditor has claimed the right against the guarantor
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Danyang Agricultural Bank claimed that it claimed the creditor’s rights to Babao liquor company through letters on April 1, 2009, December 28, 2010 and November 20, 2012, and submitted the corresponding evidence
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On April 1, 2009, he claimed the creditor’s rights to Babao liquor company by sending mail through Shunfeng company, and the evidence was the sending stub of Shunfeng company
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The evidence can prove that Danyang Agricultural Bank has delivered the mail, but can not prove that the mail arrived or should have arrived at Babao liquor company
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(2003) No
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6 of min’erta Zi stipulates that the way of mailing is specific, that is, express mail through the post office
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SF company is not a post office, just a general express company
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Danyang Agricultural Bank should provide evidence such as e-mail receipt to prove that the e-mail has arrived at Babao liquor company, but Danyang Agricultural Bank did not submit it
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The judgment of the second instance held that Danyang Agricultural Bank did not effectively collect the creditor’s rights, which did not produce the effect of the interruption of the limitation of action, and it was not an error in the application of law
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No matter what the business status of Babao liquor company was at that time, because the evidence of Danyang Agricultural Bank could not prove that it had delivered the collection letter, whether the business status of Babao liquor company was lack of evidence did not affect the trial result of the case
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Therefore, the court will not examine the second reason for the application for retrial of Danyang Agricultural Bank
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[ruling rule 2] the creditor claims to claim the right from the guarantor by mail
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Although the express bill is a copy, the mailing list contains the number of the mail, the addressee is the guarantor, the name of the inner part shows the collection of the creditor’s rights, and provides the same express inquiry record as the above number, which forms a complete chain of evidence to prove that the creditor is in the guarantee period Claim to the guarantor
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[legal yuan] Supreme People’s Court [case No.] (2019) Supreme People’s court No
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2786 [focus of dispute] the creditor claims the right to the guarantor by mail
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Can it be proved that the reminder notice has been served on the guarantor if the mailing list provided is a copy? [gist of judgment] after examination, the court held that during the original trial of the case, the copy of the first page of the express bill provided by Great Wall company stated that the express bill No
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10xx79101 issued on April 18, 2013 was addressed to Meng bin, the legal representative of Tieling guarantee company, and the name of the inner part was marked as “about the collection of Liaoning Jianhe Seamless Steel Pipe Co., Ltd…” “Although the evidence is a copy, it can be mutually verified with the express inquiry record of the same order number, forming a complete evidence chain, proving that Tieling branch of Bank of China Limited claimed the right to Tieling guarantee company during the guarantee period through postal express delivery to Tieling guarantee company.
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