Authors: Shen Minglei and Dong Leilei, December 28, 2016

Abstract: In recent years, the number of disputes over express delivery service contracts has been increasing, which has brought a series of legal application challenges. In judicial practice, courts and judges in various regions have varying understandings of the legal basis for compensation for lost or damaged express delivery, the effectiveness of insurance clauses, the definition of express delivery companies' obligations to remind and explain, and the determination of compensation amounts, resulting in inconsistent or even completely opposite judgments on similar facts. This article is based on the collected relevant judicial documents, starting from case study methods, focusing on analyzing and attempting to solve the above controversial issues, and proposing specific handling suggestions.

Keywords: Express delivery loss, damage, insurance terms, instructions, obligations, compensation scope

In recent years, China's express delivery service industry, especially the private express delivery industry, has developed rapidly. According to statistics, from 2006 to 2012, the volume of express delivery business in China increased from 1 billion to 5.7 billion, with an average annual growth rate of 33.7%. The total scale has jumped to the second place in the world With the increase of total business volume, complaints against express delivery companies are also increasing. According to relevant personnel from the National Postal Administration, complaints about lost packages, short contents, and damaged packages account for about 30% of the total complaints At the same time, various express delivery disputes have also been brought to court, but due to different understandings of relevant legal norms, there is a significant controversy surrounding the legal issues of express delivery loss and damage. Based on more than 30 judgments collected, this article focuses on analyzing and attempting to solve controversial issues such as the effectiveness of insurance clauses, the choice of legal basis, and the determination of compensation amounts in cases of express delivery loss or damage using case study methods.

1、 Legal basis and cause of action determination for compensation for lost or damaged express delivery

According to Article 47 of the Postal Law, if uninsured vouchered postal materials are lost, damaged, or have short contents, compensation shall be made based on the actual loss, but the maximum amount of compensation shall not exceed three times the fee charged; If a registered letter is lost or damaged, compensation shall be made at three times the fee charged. According to the provisions of the Contract Law, the amount of compensation may be much higher than three times the fare, and the application of the Postal Law or the Contract Law will result in a significant difference in the amount of compensation. There were different approaches to this issue in judicial practice before the revision of the Postal Law, and some cases even made different choices in the first and second instance. In the postal contract dispute case between Chen Zejun and Shenyang Jiahuier Express Service Company, the sender entrusted the express delivery company to deliver the goods to Shenzhen. During transportation, the goods were accidentally lost due to the mistake of the courier company. It is reported that the express bill states that the content of the package is "memory", and the lost goods are 99 memory modules, with a total value of nearly 30000 yuan. The first instance court ruled that the express delivery company would compensate 30000 yuan for breach of contract. The court of second instance held that due to the fact that the express delivery company is a company authorized by relevant departments to engage in express delivery business, and based on the principle that special law is superior to general law, its professional behavior should be adjusted by the Postal Law. The original trial found that the relationship between the two parties was improper in the transportation contract 3]

There are also different viewpoints on this issue in theory. One view is that the Contract Law, General Principles of the Civil Law, and Postal Law are all laws formulated by the National People's Congress or its Standing Committee. The General Principles of Civil Law is the basic law, and according to the provisions of the Legislative Law, special laws should be applied first, and the provisions of the Postal Law should be applied for compensation. Another view is that private express delivery business is different from traditional postal service business, and the application of the Postal Law to compensate is unfair to the sender. The compensation for breach of contract losses of private express delivery companies should be subject to the general provisions of the Contract Law.

I agree with the second viewpoint. The new Postal Law of 2009 includes the express delivery service industry within the jurisdiction of the postal industry in Chapter 6, but this cannot deny the differences between the express delivery service industry and traditional postal service industry. Firstly, the universal postal service business has a public welfare nature, and the country has also set low tariff standards for it. Postal universal services should be based on postal points scattered throughout the country, many of which are located in remote areas, and a round-trip delivery takes more than 10 days, mainly to meet the basic communication needs of all citizens; And express delivery services are mainly market-oriented, providing personalized and limited delivery services for some members of society with special needs and payment capabilities, and belong to competitive commercial services. From the perspective of equal rights and obligations, the two cannot be equated. Secondly, in 2009, the new Postal Law was promulgated and implemented, clearly distinguishing the postal express delivery business from traditional universal service business. Article 45, paragraph 2, clearly stipulates: "The compensation for losses of mail outside the scope of postal universal service business shall be subject to relevant civil laws." According to Zhao Xiaoguang, Deputy Director of the National Postal Administration, the compensation for damages of express mail shall be subject to relevant civil laws, The compensation amount is not subject to the limit of "three times the fare" 4] It can be seen that the provisions on limited compensation in the Postal Law do not apply to express delivery business. Express delivery companies should determine their liability for damages in accordance with laws such as the General Principles of the Civil Law, the Contract Law, and the Tort Liability Law.

In judicial practice, the causes of disputes over compensation for lost or damaged express delivery services are also inconsistent. Some cases are determined to be disputes over postal service contracts, while others are determined to be disputes over goods transportation contracts. The express delivery service contract is not a well-known contract stipulated in the Contract Law, but the rights and obligations of both parties are similar to a transportation contract. It is a contract concluded between the sender and the express delivery enterprise, with the content of the express delivery enterprise quickly delivering the items delivered by the sender to a specific recipient. The characteristics of express delivery service contracts are similar to those of goods transportation contracts: the subject matter of the contract is the carrier's act of transporting the goods, and the carrier needs to deliver the goods to the recipient before it can be considered fulfilled. Contracts often involve third parties Therefore, the cause of action for such cases should be determined as a dispute over a contract for the carriage of goods.

2、 Effectiveness of insurance clauses

Most express delivery companies have insurance clauses in their contract documents, which generally state that the sender has the right to choose insurance services when delivering the package. When an uninsured package is damaged or lost, a maximum compensation limit or several times the postage on the package can be specified Whether and how to apply these insurance clauses after the loss or damage of express delivery is highly controversial in both theoretical and judicial practice.

（1） Differences in opinions on the effectiveness of insurance clauses

The first opinion holds that the insurance clause is invalid (or revocable). The reason is that the insurance terms proposed by the courier company violate the principle of fairness, and the insurance terms are standard clauses that limit the courier company's liability for compensation and the rights of the sender. Professor Yang Lixin believes that obtaining breach of contract compensation equivalent to its losses is a legal right granted by the Contract Law and cannot be excluded through standard clauses. Therefore, this provision can be applied to confirm the invalidity of this standard clause The second and third opinions both believe that the effectiveness of the insurance clause depends on whether the courier company fulfills its obligation to remind and explain. The second opinion is that although the contract on the back of the waybill is a standard contract, the insurance clause does not exempt the express delivery company from liability, increase the sender's liability, or exclude the sender's primary rights. The insurance clause reflects the true intention of the parties involved, and the sender's signature on the waybill indicates that they accept the defendant's service terms. The express delivery company provides two risk modes for compensation liability in the event of loss or damage to the package during transportation, namely insured and non insured. If the sender knows that the package entrusted for shipment has a significant value but does not choose the insured clause, they shall bear the consequences of their own choice. Although the risk model for loss compensation is provided by courier companies, the sender has the right to choose freely, which also reflects the principle of consistency between rights and obligations. If the courier company fulfills the obligation of prompt and explanation, it should be considered that the format terms of the insurance are valid. The third opinion holds that although the insurance clause is a clause that limits the compensation liability of the courier company, if the courier company fulfills the obligation of prompt and explanation, the effectiveness of the insurance clause should be recognized; On the contrary, if the courier company fails to fulfill the obligation of prompt and explanation, even if the sender signs the document, it cannot be deemed that the sender and the courier company have reached a consensus on the content of the terms.

Although the author does not fully agree with the statement of different judgments in the same case, because although some cases have similar circumstances, the details of each case are not completely the same. However, after sorting out such cases, it is still difficult to deny that the determination of the effectiveness of insurance clauses in judicial practice is indeed quite chaotic, mainly reflected in the following. One is that there are different opinions on the effectiveness of insurance clauses in judicial practice. Out of the 28 cases investigated by the author, 13 found the insurance clause invalid, 14 found the insurance clause valid, and 1 found the insurance clause revocable. In some cases, there have been completely opposite judgments in the first and second trials: for example, in the dispute over the air cargo transportation contract between Shanghai Cuijing Trading Company and Shanghai Quanyi Express Company, the first instance determined that the insurance clause was valid, and the second instance determined that the insurance clause could be revoked In the case of a dispute over the transportation contract between Beijing Qianxi Pigeon Express Company and Beijing Vinor Computer Network Technology Company, the first instance determined that the insurance clause was invalid, and the second instance determined that the insurance clause was valid In the case of a dispute over the highway transportation contract between Hangzhou Qianyi Express Service Company and Jiande Weilong Home Appliance Company, the first instance determined that the insurance clause was invalid, and the second instance determined that the insurance clause was valid The second reason is that even the same referee result has different referee reasons. Some judgments evade the validity of the insurance clause without reasoning; Although some judgments have the same results, the reasons for the judgments are not the same, especially with different interpretations of whether the insurance clause is a standard clause that exempts (limits) the liability of the courier company and excludes the rights of the sender.

（2） Reasons for significant disputes over the effectiveness of insurance clauses

There are logical contradictions in the legislation of standard clauses. Article 39 of the Contract Law stipulates that if a contract is concluded using standard terms, the party providing the standard terms shall follow the principle of fairness to determine the rights and obligations between the parties, and take reasonable measures to draw the other party's attention to the terms that exempt or limit their liability, and explain the terms according to the other party's requirements. According to this provision, if the party providing the standard terms follows the principle of fairness and fulfills the obligation of prompt explanation in accordance with the law, the standard terms may stipulate the exemption or limitation of one party's liability. However, Article 40 of the Contract Law stipulates that if the party providing a standard clause exempts it from its liability, increases the other party's liability, or excludes the other party's main rights, the clause shall be invalid. Articles 39 and 40 of the Contract Law

There is a contradictory relationship between the provisions of Article 39 (1). "According to Article 39 (1), the exemption clause in a standard contract is effective if the obligation of presentation and explanation is fulfilled. When the law is passed, the addition of the words' exemption from liability 'in Article 40 results in the exemption clause being absolutely invalid, thus contradicting the provisions of Article 39 and Article 53." [11] According to Article 9 of the Judicial Interpretation (II) of the Supreme Court's Contract Law, If the party providing the standard terms violates the obligation of prompt and explanation, the other party has the right to revoke it. However, judicial interpretation has not yet resolved the issue of whether the formulators of standard clauses, if they fulfill reasonable obligations to remind and explain, exempt or limit their liability, will all standard clauses be invalid (or revoked). This contradiction creates difficulties for the parties to apply the Contract Law during transactions, and also makes it difficult for judicial authorities to operate when handling cases.

2. The court faces a dilemma under the principle of fairness when determining the effectiveness of insurance clauses. Treating the same situation equally, but treating different situations differently is a basic concept of fairness. The starting point for courts to handle cases is to strive to achieve this effect, but when encountering specific cases, there are often different understandings of what outcome is fair. In judicial practice, there are situations where judgments based on fairness also have opposite interpretations of fairness. For example, the judgment on the dispute over the postal service contract between Taicang Tianyi Network Technology Company and Taicang Yuantong Express Company is understood as fair, If the sender chooses to pay in an uninsured manner to reduce transaction costs and demands compensation based on the insured value after the item is lost, it clearly violates the principle of fairness, Due to the appellant's unwillingness to pay the insurance fee, the compensation standard for economic losses caused by the loss of consigned goods can only be determined based on the agreement signed by both parties and the relevant provisions of the express waybill. If the actual loss compensation is based on the appellant, it would violate the agreement of both parties and be unfair to the appellant. "[13] In the dispute case between Mao Guojian and Suzhou Harmony Yuantong Express Company's road cargo transportation contract, the court held that, The party providing the standard terms should follow the principle of fairness to determine the rights and obligations between the parties, and compensate three times the fee, which is less than 10% of the plaintiff's losses. This is unfair and unreasonable to the plaintiff. "[14] In the dispute case between Shanghai Hanxin Information Technology Company and Shanghai Gumu Express Service Company, the judgment reads as follows:, The defendant unilaterally drafted restrictive clauses on the receipt, stipulating that if the item is damaged or lost, a maximum compensation of 800 yuan per ticket will be paid, reducing the defendant's liability for compensation. This is unfair to the plaintiff and violates the spirit of legislation

（3） The author's viewpoint

Firstly, from the perspective of legal interpretation, the provisions of the law that exempt or limit the liability of the party providing standard clauses are all invalid. It is obvious that they do not take into account the principles of contractual freedom and the disposal of the parties in their handling. Moreover, the legislation of other countries or regions generally does not consider clauses that exempt or limit liability to be absolutely invalid, especially some standard clauses that exempt or limit liability belong to international trade practices, There is a widespread system regarding the limitation of carrier liability in international cargo transportation. For this reason, it is necessary to distinguish five situations. Firstly, the contract to which the format exemption clause belongs is an invalid contract as stipulated in Article 52 of the Contract Law. In this case, the format clause must be invalid. Secondly, if the format exemption clause complies with the Contract Law The types of invalid exemption clauses stipulated in Article 53 should be deemed invalid; Thirdly, if the format exemption clause refers to a clause involving loss of rights, that is, exempting one's main obligations or excluding the other party's main rights, the contract loses its foundation at the beginning and should be deemed invalid; Fourthly, if the format exemption clause only involves situations beyond the above, but the contract is obviously unfair, it should be deemed as modifiable or revocable; Fifth, if it does not belong to the above five categories, it should be considered valid 16]

Secondly, from the perspective of whether or not to recognize the effectiveness of the insurance clause, if the court recognizes the effectiveness of the insurance clause, the courier company can only compensate a few times the courier fee, and it has not suffered significant economic losses due to the loss of the package. This may condone the irresponsible behavior of the courier company, and may not actively pursue the whereabouts of the lost package afterwards; Due to the lack of full compensation by the express delivery company, it may also encourage employees of the express delivery company to use their position to embezzle and steal packages. Compared to smaller compensation amounts, the illegal benefits obtained will be much greater, which undoubtedly poses a moral hazard issue. But if the court does not recognize the effectiveness of the insurance clause, then both insured and non insured senders will receive the same full compensation. Will the sender still choose insurance in future express delivery business? Express delivery companies that charge low freight rates have to bear high compensation liability risks and consequences, and transportation companies often have to bear huge economic losses, which is not conducive to the development and growth of transportation companies. At the same time, express delivery companies may refuse to transport valuable items to the sender based on certain advantages when signing the transportation contract, out of fear of high compensation, which is inevitably not conducive to promoting the circulation of goods in the economic and social sectors 17]

Choose the lesser of the two harms. The author believes that if the operation of express delivery companies is relatively standardized and the express delivery industry enters the track of healthy development, regulations and industry standards can be formulated in a timely manner to confirm the effectiveness of the maximum compensation clause (the maximum limit should not be too low), and compensation for actual losses below the maximum limit can be made. At present, the main reasons for the loss of express delivery are directly related to the operating methods of the industry and the low threshold for hiring employees. "[18] In the case where the express delivery industry is not standardized enough and the loss and damage rate of express delivery is relatively high, the author believes that if the insurance clause does not fall under the invalidity situation stipulated in Article 52 of the Contract Law, nor does it belong to causing personal injury to the other party or causing property damage to the other party due to intentional or gross negligence, If a courier company fulfills its obligation to remind and explain, it shall be deemed effective; If the courier company fails to fulfill the obligation of prompt and explanation, the sender may apply for the cancellation of the insurance clause.

3、 Definition of Obligation to Remind and Explain

There are different understandings in different judgments regarding the way and extent of prompts and explanations. In the case of transportation contract dispute between Chen Jin and Yuantong Company, the court believes that, The limited liability clause on the express logistics details sheet is in bold font, which is significantly different from other clauses in appearance. Yuantong Company also reminds the sender to read the express service agreement on the back in bold font above the sender's signature column, which is enough to make the sender Chen Jin aware of the limited liability clause in the express service agreement. Yuantong Company has fulfilled its obligation to remind and explain 〔19〕 In the case of Changjiang's lawsuit against Wu Peng and Yunda Company over the loss of goods transported by express delivery, the court held that "the express delivery company only printed a small amount of bold characters on the front of the waybill to provide prompt information, and did not fulfill the full obligation of prompt and explanation

The author believes that a reasonable prompt and explanation method should be based on a comprehensive judgment of the following factors. Firstly, the method of drawing attention. Based on the principle of "individual reminders" and depending on the specific transaction environment, express delivery companies should clearly indicate their terms to the sender or remind the sender to pay attention in other ways. Secondly, the time for attention. The exemption clause must be presented before or at the time of signing the express delivery service contract. Thirdly, the level of clarity and clarity. The "reasonable" prompt must be prominently marked with words, symbols, fonts, etc. in a prominent position, so that the sender can "notice it at a glance" and explain the format terms according to the other party's requirements.

In the process of hearing a case, judges should strictly review and grasp the manner and extent of the obligation to prompt and explain, as well as the subjective mentality of the courier company in losing the package.

Firstly, it is necessary to strictly examine whether the courier company has adopted a reasonable way to explain the insurance terms when signing the contract, including but not limited to using special markings such as text, symbols, fonts, etc. that are sufficient to attract the other party's attention. According to 5.1.2.3 of the Service Standards for the Express Industry, courier service personnel should inquire and inspect the nature and type of the contents when receiving them. In order to ensure the safety and smooth flow of delivery channels, the National Postal Administration further proposed management measures such as affixing the "receiving and mailing inspection seal" on December 25, 2013: If any express without affixing the "receiving and mailing inspection seal" is found, it will be deemed that the receiving and mailing inspection has not been carried out, and the management responsibility of the enterprise will be investigated accordingly Therefore, if the courier service personnel can formally identify the sent item as a valuable item during the inspection process, they should advise the sender to purchase insured or insurance services. Moreover, the courier company shall bear the burden of proof for having fulfilled the obligation of reasonable reminder and explanation.

Secondly, it is necessary to examine whether the reason for the loss or damage of the package is due to the intentional or gross negligence of the courier company or its employees. If it is intentional or gross negligence, the insurance clause is of course invalid. Intentionally, it generally includes theft by courier companies or their employees, indulgence in damage and destruction, etc; Gross negligence generally includes the fact that a courier company or its employees lack the minimum duty of care that ordinary people possess, resulting in the loss or damage of goods, or the inability to explain the reasons for the loss or damage of goods. Unforeseeable accidents such as car accidents during transportation that result in loss of goods are not considered gross negligence. In the transportation contract dispute case between Qiu Ti Micro Company and Kunshan Quanyi Express Company, both parties clearly agreed that the transportation method of the goods involved in this case was by car. However, during the transportation of the goods to Hangzhou, the defendant changed to air freight without the plaintiff's consent, and the loss of the goods was also during the defendant's process of transferring from car to air freight In addition, the courier company cannot provide records of the receipt, storage, and transportation of the goods, and no remedial measures have been taken afterwards. The reason for the disappearance of the goods has not been explained. These facts can prove that the courier company has gross negligence in the performance of the contract, and the application of the insurance clause should be excluded. As mentioned earlier, in the dispute over the air cargo transportation contract between Shanghai Cuijing Trading Company and Shanghai Quanyi Express Company, based on the receipt from the Public Security Bureau, as well as relevant records and recordings, the express delivery company explicitly admitted that it was they who placed the goods and the motor vehicle at the entrance of the building and then went upstairs to pick them up. After 20 minutes of separation between the goods and the people, the goods and the motor vehicle were both stolen. The behavior of the courier company should be considered gross negligence, and the insurance clause in the contract is invalid. Due to the asymmetry of information between the courier company and the sender, it is difficult to know the reason for the loss or damage of the package. It is very difficult for the sender to prove that the courier company has intentional or gross negligence. Therefore, the courier company should bear the burden of proof that it did not have intentional or gross negligence.

4、 Determination of compensation amount

If the insurance clause is deemed valid, the amount of compensation is easily determined, that is, compensation will be made according to the standards determined by the insurance clause. If the insurance clause is revoked, determining the amount of compensation is a topic worth discussing. In most cases where the insurance clause is determined to be invalid, the court has ruled that the courier company will compensate in full for the losses that can be proven by the evidence provided by the sender. In some cases, the determination of the amount of compensation is related to court discretion factors, including compensating the sender at their discretion or applying the principle of fault offset to reduce the liability of the courier company.

（1） Is discretionary compensation applicable

In judicial practice, the reason why courts apply discretionary compensation is often because judges can confirm the approximate amount of losses suffered by the sender through their judgment of the evidence submitted by the sender. However, due to insufficient evidence submitted by the sender, a compromise judgment is made.

1. The evidence submitted by the sender is not sufficient

In the second instance judgment of the dispute over the mailing service contract between Yulin Shentong Express Company and Yuan, although Yuan claimed that he purchased from the manufacturer at a price of 5.6% off the clothing tag, the shipping company also issued a certificate proving that the lost down jacket was priced at 3567 yuan. However, the second instance court held that neither party had submitted evidence to prove the purchase price of the goods, so the loss of Yuan was determined at a discretion of 40% off the clothing tag price In the appeal case of the transportation contract dispute between Shanghai Chengzhong Express Company and Shanghai Zeshi Clothing Company, Zeshi Company provided relevant evidence to prove that the number of lost goods was 271 pieces of clothing. However, the evidence to prove the specific value of the lost goods was 58000 yuan is not sufficient. As the goods have been lost and their value cannot be estimated, a compensation of 20300 yuan is imposed in accordance with the law 24]

2. Determine compensation based on the principle of fairness

In the dispute case between A Express Company and Yang Yi regarding the service contract, although Yang Yi entered into a batch of clothing transactions on Taobao with a transaction amount of 16291.94 yuan, the final compensation amount was determined by the court based on the transaction price between Yang Yi and the counterparty, combined with the principle of fairness and reasonableness 25]

3. The evidence submitted by the sender is insufficient and compensation is determined based on the principle of fairness

In the dispute over the goods transportation contract between Changjiang, Wu Peng, and Yunda Company in the previous case, the plaintiff claimed that the lost goods were purchased from the factory at a retail price of 4.8% off, and provided proof of the franchise agreement. The court found that the plaintiff did not provide any other evidence to prove it, and based on the principle of fairness, the value of the lost goods was calculated at half of the total goods as appropriate.

The author believes that in determining the amount of loss, if the judge can form inner conviction that although the evidence submitted by the sender is not sufficient, the judge can exercise appropriate discretion to determine the amount of loss, but this amount should be within the market value of the lost goods. In the dispute case between A Express Company and Yang Yi's service contract, evidence such as Taobao transaction records can prove the transaction amount, and the transaction amount is not significantly abnormal, so there is no possibility of false transactions. The court should not determine the compensation amount at its discretion, but can determine the amount based on this evidence chain.

（2） Scope of foreseeable losses

The principle of assuming liability for breach of contract damages is to implement full compensation, including actual losses and losses of available benefits, but subject to certain rules. Article 113 (1) of the Contract Law establishes the rule of predictability, which states that "the amount of compensation for losses shall be equivalent to the losses caused by the breach of contract, including the benefits that can be obtained after the performance of the contract, but shall not exceed the potential losses caused by the breach of contract that the breaching party had foreseen or should have foreseen at the time of entering into the contract." Regarding whether the losses were foreseeable or should have been foreseen, The judgment should be based on the facts and circumstances that the defaulting party actually knew or should have known at the time of signing the contract. That is to say, the judgment should be based on the situation at the time of the contract, rather than other times, and should be based on the facts and circumstances that the defaulting party actually knows and should know based on their identity and profession In the dispute over the road cargo transportation contract between Mao Guojian and Suzhou Harmony Yuantong Express Company, Mao Guojian spent 2600 yuan to purchase a stone basin. After the parcel was lost, Mao Guojian claimed compensation of 10000 yuan based on the photos of China's first contemporary art stone carving exhibition, believing that the stone basin had collectible value. Such a lawsuit request is clearly beyond the expected benefits. In some cases, Taobao transactions are lost after being sold at the selling price and shipped, and the court often awards compensation based on the purchase price. The author believes that specific cases should be distinguished. If the transaction has been sold and shipped, the selling price should be the expected return of the sender. If the buyer requests to sell due to damage or loss of the package, excluding the possibility of false transactions

The seller can request compensation from the courier company based on the selling price after the refund.

（3） Compensation for special items

Special items refer to items such as personnel files, graduation certificates, and photo albums. For a courier company, they may be worthless, but for their owners, they are of great significance, making it difficult to evaluate and measure their value through objective standards, and it is also difficult to guarantee their value. The loss of the above-mentioned items will cause significant losses (including mental damage) to everyone. If the courier company only compensates for it at the price of one printed paper, it clearly violates the principle of fairness. The author believes that there is a confluence of breach of contract liability and tort liability in the dispute of compensation for lost or damaged express delivery, allowing the sender to choose the basis of the right of claim based on their own interests. When the sender sends items with special significance to the sender or recipient, in order to maximize the protection of civil rights and interests, according to the Tort Liability Law According to the Interpretation of the Supreme People's Court on Several Issues Concerning the Determination of Liability for Compensation for Mental Damage in Civil Torts, a lawsuit is filed for compensation for mental damage on the grounds of infringement. Of course, the shipper's choice to sue for infringement will also bear a higher burden of proof than a lawsuit for breach of contract. Although these special items are difficult to value and insure, compared to courier companies, senders understand their value better. For these special items, it is best for senders to choose a quote based on their psychological evaluation of the value when mailing.

There is also a controversial issue in determining the compensation amount for special items, which is how to compensate for the loss, damage, or delay of the invoice by the courier company. Is it based on the value of the invoice itself or on tax losses? In judicial practice, there are cases where compensation is based on tax losses. For example, in the dispute over the mailing service contract between Nanjing Zhongxue Adhesive Tape Manufacturing Company, Jiangsu Shentong Logistics Company, and Jiangsu Shentong Logistics Company Nanjing Branch, the plaintiff handed over the express package containing an invoice of 239808.23 yuan to the salesperson of Shentong Nanjing Branch. After more than three months of reconciliation, it was found that the invoice sent by the plaintiff was not received by the other party. The plaintiff immediately requested the defendant Shentong Nanjing Branch to search. After investigation, Shentong Nanjing Branch sent the wrong address and delayed the delivery time, causing the value-added tax invoice inside the package to be unable to be deducted within the specified period (according to tax law, the value-added tax invoice can be deducted within 90 days after issuance), resulting in a direct economic loss of 34843.91 yuan for the plaintiff. The court ultimately ruled that Shentong Nanjing Branch compensated for tax losses of 34843.91 yuan, and Shentong Company bears supplementary responsibility. In some cases, the court determines the amount of compensation. In the case of a transportation contract dispute between Dehong Electronics (Suzhou) Co., Ltd. and Suzhou Zhongtong Express Co., Ltd., the court held that Dehong's loss of 122656.28 yuan exceeded Zhongtong's reasonable expectations. In addition, the express delivery fee charged by Zhongtong Company is only 5 yuan, and Dehong Company has not declared the value and paid additional insurance fees according to the insurance regulations. According to the principle of fairness, the transportation risk borne by Zhongtong Company should be equivalent to the benefits it obtains, and excessive responsibility should not be added. Based on the above reasons, the court has ruled that Zhongtong Company shall compensate Dehong Company with a loss of 20000 yuan. The author believes that value-added tax invoices are quite special, and the value of the invoice itself is not high. However, if delayed and cannot be deducted within the specified period, it will result in significant tax losses. The courier service personnel are unable to determine the amount of the invoice and the amount of taxes involved during the collection and transportation of the package, and naturally cannot foresee significant losses due to their delivery errors. Therefore, the loss of the sender has exceeded the reasonable foreseeable scope of the courier company. Therefore, in a lawsuit for breach of contract, the court should not award full compensation based on tax losses, but may decide to make appropriate compensation. The best choice for this type of case is to explain to the plaintiff that they can choose to sue for infringement, and the court can handle the tax losses based on the degree of fault of both parties.

(Author's unit: Jiangsu Provincial Higher People's Court)

*This article is the research result of the Modern Judicial Research Center project at the Off campus Research Base of the Jiangsu Provincial Department of Education.

References

〔1〕 Please refer to "China's express delivery business volume surged in the first four months of 2013" http://gb.cri.cn/42071/2013/05/20/6071s4121430.htm Visited on November 9, 2013.

〔2〕 Refer to "30% of complaints about lost packages in express delivery last year", published in the 046 edition of the Beijing Times on January 13, 2011.

〔3〕 Refer to Judgment No. 540 of Shen Zhongmin (III) Hezhong Zi (2005).

〔4〕 Please refer to the "Express Delivery 'Inspection before Receipt' Entry Method", published in the A14 edition of the Information Times on January 26, 2013.

〔5〕 The express delivery service contract in online shopping transactions is different from the consignment service contract. The consignment service contract is independent of the sales contract, while the express delivery service contract in online shopping transactions is not independent of the sales contract,

The seller enters into a transportation contract with the carrier in their own name, only stating that the consignee is the buyer in the contract, and the seller does not handle the shipment on behalf of the carrier.

〔6〕 For example, the express bill of China Express states that if the package is lost or short, compensation will be made based on the actual loss, but the maximum amount shall not exceed 1000 yuan per shipment; Yunda Express stipulates that if there is no quotation, compensation will be paid at 5 times the price. SF Express

The compensation amount stipulated by the delivery regulations shall not exceed 9 times the shipping cost for monthly customers and 7 times the shipping cost for non monthly customers.

〔7〕 Yang Lixin: "Three Issues on Determining Compensation Liability for Lost Goods in Express Delivery Services", published in China Trial, Issue 58, 2010.

〔8〕 Please refer to the (2009) Hu Er Zhong Min Si (Shang) Zhong Zi No. 623 judgment.

〔9〕 Refer to Judgment No. 5125 of Jingyi Zhongmin Zhong Zi (2009).

〔10〕 Please refer to the (2009) Zhehang Shangzhong Zi No. 540 judgment.

〔11〕 Liang Huixing: "Unified Contract Law: Success and Shortcomings", published in China Law Journal, 1999, Issue 3.

〔12〕 Please refer to the judgment (2010) Taicheng Shangchu Zi No. 0028.

〔13〕 Refer to the (2005) Hu Er Zhong Min Si (Shang) Zhong Zi No. 219 judgment.

〔14〕 Please refer to the judgment (2012) Anshangchu Zi No. 0241.

〔15〕 Please refer to the (2005) Hongmin Er (Shang) Chu Zi No. 1139 judgment.

〔16〕 Zhou Qinglin: "On the Effectiveness Levels of Format Exemption Provisions - Also on the Contradictions and Coordination between the Contract Law and its Judicial Interpretation", published in Modern Law, 2011, Issue 7.

〔17〕 Gao Jing: "Research on Compensation for Damage Caused by Uninsured Transportation of Goods", published in http://www.chinacourt.org/article/detail/2008/02/id/288478.shtml Visited on November 9, 2013.

〔18〕 Refer to "Low franchise threshold, how can the express delivery industry not be chaotic?", published in the A04 edition of the Yangcheng Evening News on November 3, 2010.

〔19〕 Refer to Judgment No. 286 of Jiangning Tang Min Chu Zi (2010).

〔20〕 Refer to Judgment No. 1514 of Suzhong Minzhong Zi (2011).

[21] Please refer to the A2 edition of Modern Express on December 26, 2013.

[22] Please refer to the judgment (2012) Kun Shang Chu Zi No. 1014.

[23] Please refer to the (2012) Yuzhong Famin Sanzhong Zi No. 00017 Judgment.

[24] Please refer to the (2006) Hu Er Zhong Min Si (Shang) Zhong Zi No. 542 judgment.

[25] Please refer to the judgment (2012) Hu Yi Zhong Min Yi (Min) Zhong Zi No. 2153.

[26] Refer to Liu Xiaoxia: "How to compensate for losses caused by express delivery delays", published in China Trial, Issue 58, 2010.

[27] Please refer to the judgment (2010) Ning Shang Zhong Zi No. 01071.

[28] Please refer to the (2010) Su Zhong Shang Zhong Zi No. 0446 judgment.