How to calculate the exchange rate when prosecuting foreign-related disputes
Case Introduction:
In foreign-related civil and commercial trials, it is not uncommon for cases in which the subject matter of the debt is foreign currency. So, can the court directly decide the payment of foreign currency? If the foreign currency is not paid, how should the foreign currency be paid? What kind of standards should be converted into RMB? In this regard, the current laws and judicial interpretations have not clearly stipulated. There are great controversies in trial practice and the trial results are also complicated.
Lawyer’s opinion:
1. Currency of payment for foreign currency debts
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Foreign currency debt refers to debt based on the payment of a certain amount of foreign currency. In overseas legislation, many countries and regions have clearly stipulated that debts in foreign currencies should be paid in domestic currency as a principle and foreign currencies as an exception, such as the German Civil Code and the Civil Code of Taiwan, my country. However, throughout my country's current civil and commercial laws, there is a lack of provisions on the principles of payment of debts in foreign currencies. Article 8 of the "Foreign Exchange Administration Regulations of the People's Republic of China" stipulates: "The circulation of foreign currencies is prohibited within the territory of the People's Republic of China, and settlement in foreign currencies is not allowed, except where otherwise provided by the state." Some people believe that since our country prohibits the circulation of foreign currencies within the territory, As a pricing and settlement currency, when a debtor pays a foreign currency debt within my country, it should be converted into RMB for payment. This view is not unreasonable, but neither the Foreign Exchange Management Regulations nor other current laws prohibit court judgments from determining payment of foreign currency. In the field of civil and commercial matters, the concept of "doing whatever is not prohibited by law" has always been followed, especially when it comes to foreign-related matters. When it is possible to apply for extraterritorial recognition and enforcement of civil and commercial judgments from Hong Kong, Macao and Taiwan, the debtor may perform the debts determined by the judgment overseas. If the parties to a foreign-related contract explicitly agree to settle in foreign currency, and the creditor requires payment in foreign currency, the creditor can fully comply with the agreement. It is not necessary to convert them into RMB. Therefore, the author is inclined to believe that when the creditor explicitly requests that the foreign currency debt be converted into RMB according to the exchange rate and then paid, the court should support it, except where the creditor requires payment of foreign currency.
2. Conversion method of foreign currency debt
The conversion of foreign currency involves both the price and the time of conversion Question. Regarding the issue of conversion price, the foreign exchange market is divided into buying price, selling price and middle price. The Supreme People's Court issued a Reply to the Request for Instructions on How to Determine the Exchange Rate of RMB against Major Foreign Currencies in the Trial of Foreign-Related Civil and Commercial Cases. It stipulates that "before January 4, 2006, the exchange rate (central parity rate) of RMB against major foreign currencies shall be determined according to the determination announced by the People's Bank of China; after January 4, 2006, the central parity rate of RMB against major foreign currencies shall be determined according to the determination announced by the People's Foreign Exchange Trading Center of China , other foreign exchange rates are calculated based on their exchange rates with the US dollar. "Therefore, the conversion price of foreign currencies should currently be calculated based on the central parity rate of major foreign currencies announced by the People's Foreign Exchange Trading Center of China, and other foreign exchanges will be calculated based on their exchange rates with the U.S. dollar.
The issue of the time of conversion of foreign currency is the core and difficulty in the calculation of foreign currency debt. The results of conversion based on the exchange rate on different dates are likely to be very different. The exchange rate at which point in time is used for conversion is directly related to the interests of the parties involved. . Regarding the specific conversion time point, there are various standards such as the date of loss occurrence, debt maturity date, prosecution acceptance date, judgment date, etc. In specific trial practice, the time points determined by the court are different, and the parties’ The dispute has never stopped.
Generally speaking, when a creditor sues to require the debtor to bear debts in foreign currencies, if the debtor is required to repay in RMB, it will first choose The creditor should convert the exchange rate at a certain point in time and request the court to support its claim. The creditor should not select a specific date randomly or simply tend to a date with a higher exchange rate, but should provide corresponding evidence to prove that the date has a certain Only when there is a certain correlation between the reference value and the creditor-debt relationship between the parties can we better win the support of the court.
Take the ** Maritime Court as an example , numerous trial practices have proven that if the exchange rate date selected by the parties does not have defensible evidence, and the defendant does not agree with the exchange rate selected by the plaintiff, the court will tend to reject the exchange rate and instead select a date such as the date of performance of the contract or the date of damage. , the exchange rate on the date the case is accepted will be converted. If there is no clear contract in the case and the parties involved do not claim other specific date exchange rates, the court will often choose the exchange rate on the date the case is accepted for conversion. Of course, if the date selected by the creditor is not certain, principle, but if the exchange rate on that day is lower than the exchange rate on a series of standard days such as the debt maturity date and the date of prosecution, it will be regarded as the creditor giving up part of its own interests. For this creditor's voluntary choice and correspondingly reduce the debtor's burden, the court Tend to support.
The significance of the selection of various conversion standards mainly lies in which party bears the risk of exchange rate fluctuations. Exchange rate fluctuations are a double-edged sword. No matter which conversion standard is fixed, it may have adverse effects on the parties involved. Therefore, when determining the exchange rate conversion price and specific date, the court should adhere to the concepts of fairness and impartiality, allocate exchange rate risks according to the specific circumstances of the case and evidence materials, abandon a single trial idea, adopt diversified conversion standards, and adhere to the principle of fairness and justice. On the basis of the principle of benefiting the non-defaulting party, the non-defaulting party is given the right to choose, instead of mechanically establishing a fixed and single time point as the conversion standard.
Above Knowledge is the editor's answer to the question "How to calculate the exchange rate when a foreign-related dispute is filed". When a foreign-related dispute is to be resolved through litigation, the exchange rate calculation should be based on the actual exchange rate of the bank at the time of filing the lawsuit. This calculation is the most accurate. Readers If you need to find a lawyer to consult on legal issues, you are welcome to go to the Legal Savior Network for legal consultation.
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