Data

Date:
27-08-2001
Country:
China
Number:
(2001) YunFaMinChuZi no. 1430
Court:
Guangzhou Baiyun District People’s Court
Parties:
Qu Lianji v. Guangzhou Baiyun Tianxiange Restaurant

Keywords

DISPUTE BETWEEN A CHINESE INDIVIDUAL AND A CHINESE RESTAURANT - GOVERNED BY CHINESE LAW

"COMMENTS" BY CHINESE JUDGES ON THEIR DECISIONS - NOT LEGALLY BINDING - DECISION INVALIDATING A STANDARD TERM CONSIDERED TO BE UNFAIR - REFERENCE IN THE DISSENTING COMMENTS BY A JUDGE OF A HIGHER COURT TO ARTICLE 2.20 [ARTICLE 2.1.20 OF THE 2004 EDITION] OF THE UNIDROIT PRINCIPLES

Abstract

Qu Lianji ("Qu") brought a bottle of wine to Guangzhou Baiyun Tianxiange Restaurant ("Tianxiange") when he went there for supper. After supper, Tianxiange charged Qu for CNY 186 as dining expenses plus CNY 20.00 as a fee for opening the wine bottle ("the extra fee"). The parties disputed the extra fee, and Tianxiange refused to return CNY 20.00, referring Qu to the notice posted in the restaurant which stated “Please do not bring your own wine here; for any wine brought by any customer, we shall charge CNY 20.00 as an extra fee for opening your wine bottle”. Qu commenced proceedings in Guangzhou Baiyun District People’s Court ("the Court") against Tianxiange, seeking reimbursement of CNY 20.00. The Court considered Tianxiange's notice a standard term incorporated in the service contract between the two parties, but held that, in view of its unfair content, it was invalid according to both the General Principles of Civil Law and the Contract Law of the People’s Republic of China. As a consequence the Court awarded reimbursement of CNY 20.00. The decision was confirmed by the Guangzhou Intermediate People’s Court at second instance.

Note:

This case has attracted much attention as charging extra fees for opening wine bottles brought by consumers themselves has long been the practice in Mainland China. The case was later selected for a "case comment" written by a judge of Guangdong High People's Court, a court higher than the two courts in charge of the present case. The commentator disagreed with the rulings of the two courts that the restaurant’s notice was invalid and among others referred to Art. 2.1.20 of the UNIDROIT Principles which however had not been expressly mentioned in the judgments. It is interesting to note that here the UNIDROIT Principles were relied upon to analyze a purely domestic case. The reference to the UNIDROIT Principles shows that they have a sort of persuasive value. However, it is worth mentioning that, although "case comments" of this type are circulated among the courts, often published and intended as guidelines for judges (particularly those of the lower courts) who may be in charge of similar cases, they are not legally binding under Chinese law, and hence are unlikely to be cited by other Chinese judges or attorneys.

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