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Rules
Chapter I General Provisions
Article 1 This Law is enacted for the purpose of standardizing acts of auction, maintaining order of auction and protecting the lawful rights and interests of all the parities in activities of auction.
Article 2 This law applies to auction activities conducted by auction enterprises within the territory of the People's Republic of China.
Article 3 Auction refers to the means of selling and buying by which specific articles or goods or property rights are transferred through public bidding to the bidder that offers the highest price.
Article 4 The parties in activities of auction shall abide by the relevant laws and administrative rules and regulations and adhere to the principles of openness, fairness, justice and good faith.
Article 5 The department in charge of administration of the auction trade under the State Council shall exercise supervision over and administration of the auction trade throughout the country.
The departments in charge of administration of the auction trade under the People's governments of provinces, autonomous regions, municipalities directly under the Central Government, or cities divided into districts shall exercise supervision over and administration of the auction trade in their respective administrative regions.
Chapter II Objects of Auction
Article 6 Objects of auction shall be the articles or goods or property rights which are owned by the client or which the client may dispose of according to law.
Article 7 Articles or goods or property rights prohibited for sale by laws or administrative rules and regulations shall not be made objects of auction.
Article 8 With respect to the articles or goods or property rights whose transference is subject to examination and approval as provided for by laws or regulations of the State Council, the parties concerned shall, prior to their auction, go through the formalities for the examination and approval according to law. With respect to the cultural relic under authorization for auction, they shall, prior to their auction, be subject to appraisal and permission given according to law by the administrative department for cultural relic in the place the auctioneer's residence is located.
Article 9 With respect to articles or goods confiscated or used to offset tax money or fines by the administrative organs of the State in accordance with law and other articles or goods, all of which should be auctioned through authorization as prescribed by regulations of the State Council, the auction shall be conducted by auctioneers designated by the people's governments of the provinces, autonomous regions or municipalities directly under the Central Government or of the cities divided into districts, where such property is located. Auction of articles or goods confiscated or used to offset tax money or fines by the People's Courts in accordance with law and other articles or goods that are retrieved but cannot be returned to their owners shall be governed by the provisions of the preceding paragraph.
Chapter III Parties to Auction
Section 1 Auctioneer
Article 10 An auctioneer refers to an enterprise legal person that is established in accordance with this Law and the Company Law of the People's Republic of China and engaged in activities of auction.
Article 11 Auction enterprises may be established in cities divided into districts. Establishment of an auction enterprise shall be subject to examination, verification and permission by the department in charge of the auction trade under the people's government of the province, autonomous region, or municipality directly under the Central Government in the place where the enterprise is to be established and shall be registered with the administrative department for industry and commerce for obtaining of a business license.
Article 12 To establish an auction enterprise, the following conditions shall be satisfied:
(1) having a registered capital of RMB one million yuan or more;
(2) having its own name, organizational structure, premises and Articles of Association;
(3) having auction masters and other employees commensurate to the trade;
(4) having rules for the auction trade that conform to the provisions of this Law and other relevant laws;
(5) complying with the regulations of the State Council regarding development of the auction trade;and
(6) other conditions as provided for by the laws or administrative rules and regulations.
Article 13 An auction enterprise engaged in the auction of cultural relics shall have a registered capital of RMB10 million yuan or more and employees equipped with the professional knowledge about auction of cultural relics.
Article 14 Auction activities shall be presided over by auction masters.
Article 15 An auction master shall satisfy the following requirements:
(1) having acquired a 3-year college education or higher education and professional knowledge about auction;
(2) having worked two years at least in an auction enterprise; and
(3) being a person of good conduct.
If a person has been discharged from public employment or his qualification certificate of auction master rescinded for less than five years or has been subjected to criminal punishment for intentional offense, he shall not be employed as an auction master.
Article 16 Examination for qualification of auction masters shall be arranged exclusively by the Auction Trade Association. Persons who pass the examination shall be issued qualification certificates for auction masters by the said association.
Article 17 The Auction Trade Association is a public organization legal person established in accordance with law and a self-disciplined organization for the trade of auction. The Auction Trade Association shall, in accordance with this Law and its own Articles of Association, exercise supervision over auction enterprises and masters.
Article 18 An auctioneer shall have the right to request his clients to make clear the origins and defects of the objects of auction. An auctioneer shall make defects of the objects of auction known to bidders.
Article 19 An auctioneer shall have the obligation of taking care of the articles or goods delivered by his clients to him for auction sale.
Article 20 After accepting authorization, the auctioneer may not authorize another auctioneer to perform the auction without prior consent of his client.
Article 21 An auctioneer shall keep the identity of his client or vendee confidential if so requested.
Article 22 An auctioneer and his employees may not get involved as bidders in the auction sale which is arranged by themselves and may not authorize another to act as a bidder on their behalf.
Article 23 An auctioneer may not put his own articles or goods or property right on an auction sale which is arranged by himself.
Article 24 When an auction transaction is concluded, the auctioneer shall deliver the money paid for the objects of auction to the clients as agreed and transfer the objects of auction to the vendees as agreed.
Section 2 Client
Article 25 A client refers to a citizen, legal person or other organization that authorizes an auctioneer to auction his or its articles, goods or property rights.
Article 26 A client may go through the formalities for authorization of auction by himself or through his agent.
Article 27 A client shall make clear the origins and defects of the objects of auction to the auctioneer.
Article 28 A client shall have the right to determine the reservation price for the objects of auction and require the auctioneer to keep it confidential. With respect to auction of State assets, assessment of which is required by law or regulations of the State Council, assessment shall be made by the appraisal institution established according to law, and reservation prices for the objects of auction shall be determined on the basis of the assessment made.
Article 29 A client may withdraw the objects of auction before the auction sale commences. In such a case, the client shall pay to the auctioneer the expenses as agreed, in the absence of such an agreement, the client shall pay to the auctioneer a reasonable amount of expenses.
Article 30 A client may not participate in bidding and may not authorize another to bid on his behalf.
Article 31 Where it is agreed that the objects of auction shall be transferred by the client, after the auction transaction is concluded, the client shall transfer the objects of auction to the vendees.
Section 3 Bidder
Article 32 A bidder refers to a citizen, legal person or other organization that participates in the bidding for objects of auction.
Article 33 Where requirements for selling and buying of objects of auction are prescribed in law or administrative rules and regulations, a bidder shall meet those requirements.
Article 34 A bidder may take part in bidding by himself or authorize his agent to participate in it.
Article 35 A bidder shall have the right to be informed of defects of the objects of auction and the right to inspect them and to have access to information pertaining to them.
Article 36 Once a bidder bids for a price, it shall be irrevocable, and it shall lose its binding force as soon as another bidder offers a higher price.
Article 37 Bidders or bidders and auctioneers may not collude with each other out of ill intention to harm the interests of another.
Section 4 Vendee
Article 38 A vendee refers to a bidder who purchases an object of auction at the highest price offered by him.
Article 39 A vendee shall pay for the object of auction at the price agreed, failing that, he shall bear liabilities for default or, with the consent of the client, the auctioneer may put the object of auction up at auction again. Where the object of auction is auctioned again, the former vendee shall pay the commission he himself and the client should pay for the first auction sale. Where the price for the second auction sale is lower than that for the first one, the former vendee shall make up the difference.
Article 40 Where a vendee fails to obtain the object of auction as agreed, he shall have the right to request the auctioneer or client to bear liabilities for default.
Where a vendee fails to collect the object of auction as agreed, he shall pay the storage charge incurred thereby.
Chapter IV Auction Procedures
Section 1 Authorization of Auction
Article 41 When a client authorizes auction articles or goods or property rights, he shall provide his identity certificate and, as required by the auctioneer, the ownership certificate for the objects of auction, or certificates and any other materials testifying that he may dispose of the objects of auction according to law.
Article 42 The auctioneer shall verify the relevant certificates and materials provided by the client. When an auctioneer accepts authorization, he shall sign a contract for authorization of auction with the client.
Article 43 The auctioneer may have the objects of auction evaluated, if he deems it necessary.
Where the conclusion of the expect evaluation does not conform to the descriptions of the objects of auction as specified in the contract for authorization of auction, the auctioneer shall have the right to demand modification or cancellation of the contract.
Article 44 In a contract for authorization of auction, the following particulars shall be specified:
(1) name or title and address of the client and auctioneer;
(2) title, specifications, quantity and quality of the object of auction;
(3) reservation price offered by the client;
(4) time and place of the auction;
(5) time and manner of delivery or transference of the object of auction;
(6) commission, manner and time limit for its payment;
(7) manner and time limit for payment of the purchase;
(8) liabilities for default; and
(9) other matters as agreed upon between both parties.
Section 2 Announcement of Auction and Display of Objects of Auction
Article 45 The auctioneer shall announce the opening of an auction seven days prior to the date of auction.
Article 46 In the announcement of auction, the following particulars shall be specified:
(1) time and place of auction;
(2) objects of auction;
(3) time and place for display of the objects of auction;
(4) formalities to go through for participating in bidding; and
(5) other matters that need be announced.
Article 47 Announcement of an auction shall be released through newspapers or other media.
Article 48 The auctioneer shall display the objects of auction prior to the auction sale and provide relevant information and conditions for bidders to check the objects of auction.The duration of display shall be not less than two days.
Section 3 Execution of Auction
Article 49 The auction master shall announce the auction rules and points for attention before the auction sale takes place.
Article 50 Where there is no reservation price for an object of auction, the auction master shall make it clear before the auction sale.
Where there is a reservation price for an object of auction and the highest price offered by a bidder does not reach the reservation price, the offer shall be non-binding and the auction master shall suspend the auction sale of the said object. Where there is a reservation price for an object of auction and the highest price offered by a bidder does not reach the reservation price, the offer shall be non-binding and the auction master shall suspend the auction sale of the said object.
Article 51 When the highest offer is confirmed by the auction master by knocking the gavel or any other way of public confirmation, the auction transaction is concluded.
Article 52 After a transaction is concluded, the vendee and the auctioneer shall execute a written confirmation.
Article 53 When an auction sales is under way, minutes of auction shall be made and signed by the auction master and recorder, as well as the vendee if a transaction is concluded.
Article 54 The auctioneer shall properly keep the complete set of account books relating to business operation, the auction minutes and any other relevant materials.
The period for maintaining the account books, auction minutes and other relevant materials as specified in the preceding paragraph shall be not less than five years, counting from the date of expiration of the contract for authorization of auction.
Article 55 Where it is necessary to make changes in certificates or licenses or to transfer ownership of property rights, in accordance with law, with regard to the objects of auction, the client and vendee shall go through the formalities with the relevant administrative organ by producing the transaction certificate prepared by the auctioneer and relevant materials.
Section 4 Commission
Article 56 The client and vendee may reach an agreement with the auctioneer on the proportion of commission.
Where a transaction is concluded in the absence of such an agreement, the auctioneer may charge a commission of not more than five percent of the transaction price from the client and the vendee respectively. The proportion of commission to be charged shall be determined according to the principle that it is inverse proportion to the transaction price. Where no transaction is concluded, the auctioneer may charge the client the expenses as agreed. In the absence of an agreement, the auctioneer may charge the client a reasonable amount for the expenses of auction.
Article 57 For the auction of articles or goods specified in Article 9 of this Law, where a transaction id concluded, the auctioneer may charge the vendee a commission of not more than five percent of the transaction price. The proportion of commission to be charged shall be determined according to the principle that it is in inverse proportion to the transaction price. In case no transaction is concluded, the provisions of paragraph 3, Article 56 of this Law shall apply.
Chapter V Legal Liability
Article 58 Where a client, in violation of the provision of Article 6 of this Law, authorizes auction of articles or goods or property rights that he does not own or he has no right to dispose of according to law, he shall bear liability according to law. Where the auctioneer knowingly auctions articles or goods or property rights that the client does not own or has no right to dispose of according to law, he shall bear joint and several liability.
Article 59 Where a State organ, in violation of the provisions of Article 9 of this Law and without permission, disposes of articles or goods for the auction of which it should authorize the auctioneer designated by the people's government of the province, autonomous region, municipality directly under the Central Government or of the city divided into districts where such property is located, the persons who are directly in charge and other persons who are directly responsible for the offense shall be given administrative sanctions according to law, where losses have been caused to the State, they shall be liable for compensation.
Article 60 If anyone, in violation of the provision of Article 11 of this Law, establishes an auction enterprise without permission and registration, the enterprise shall be banned by the administrative department for industry and commerce, the illegal gains shall be confiscated and he may also be fined not less than one time and not more than five times the amount of the illegal gains.
Article 61 Where an auctioneer or client, in violation of the provisions of Paragraph 2, Article 18, or Article 27 of this Law, fails to make clear defects of the objects of auction and thus causes losses to the vendee, the vendee shall have the right to claim compensation from the auctioneer; where the client is responsible for the loss, the auctioneer shall have the right of recourse against the client.
Where an auctioneer and client declare, prior to the auction sale, that they cannot guarantee the genuineness or quality of an object of auction, they shall not be liable for the guaranty of the object.
In the absence of such declaration, the period for limitation of action for claim of compensation shall be one year, counted from the day the party concerned came to know or should have known that his rights were encroached upon.
The period of limitation of action for claim of compensation for personal or property damage occasioned by defects in an object of auction shall be governed by the relevant provisions of the Law of the People's Republic of China on Product Quality and other laws.
Article 62 Where an auctioneer or any of his employees, in violation of the provisions of Article 22 of this Law, participates in bidding or authorizes another to bid on his behalf, the administrative department for industry and commerce shall give the auctioneer a disciplinary warning, and may impose on him a fine of not less than one time and not more than five times the commission for auction. If the violation is serious, his business license shall be revoked.
Article 63 Where, in violation of the provisions of Article 23 of this Law, an auctioneer puts his own articles or goods or property rights up at auction that is arranged by himself, the administrative department for industry and commerce shall confiscate his earnings from the auction sale.
Article 64 Where, in violation of the provisions of Article 30 of this Law, a client participates in bidding or authorizes another to bid on his behalf, the administrative department for industry and commerce may impose on him a fine of not more than 30% of the transaction price.
Article 65 Where, in violation of the provisions of Article 37 of this Law, bidders or bidders and auctioneers collude with each other out of ill intention and thus cause losses to another, the auction shall be invalid and they shall be liable for compensation according to law. The administrative department for industry and commerce shall impose on the bidders that participate in such collusion a fine of not less than 10% and not more than 30% of the highest price offered; it shall impose on the auctioneers that participate in such collusion a fine of not less then 10% and not more than 50% of the highest price offered.
Article 66 Where an auctioneer collects commission in violation of the provisions in Section 4 of Chapter 4 of this Law regarding the proportion of commission, he shall return the part that exceeds the prescribed proportion to the client and vendee. The price control authorities may impose on the auctioneer a fine of not less than one time and not more than five times the commission for auction.
Chapter VI Supplementary Provisions
Article 67 This Law shall apply to foreign nationals, foreign enterprises and organizations that authorize auction or participate in bidding within the territory of the People's Republic of China .
Article 68 Auction enterprises, established prior to implementation of this Law, that do not meet the conditions provided for in this Law, within the prescribed time limit, meet such conditions; with regard to those that fail to meet the said conditions within the time limit, the administrative department for industry and commerce shall cancel their registration and rescind their business licenses. Specific measures in this regard shall be formulated separately by the State Council.
Article 69 This Law shall come into effect as of January 1, 1997.
The Conditions of Business are made in accordance with the Auction Law of the People's Republic of China, other relevant laws implemented in the People's Republic of China, regulations of the People's Republic of China and the Articles of Association of the Company with reference to international conventions. Both the Bidder and the Seller shall read carefully the following detailed regulations and be responsible for his actions while carrying out these regulations. Special problems and unwritten matters not mentioned in this document shall be explained and handled by the Auctioneer in accordance with the principles of these regulations. Contentious law problems shall be settled in accordance with the laws and regulations of the People's Republic of China.
Part I Main Stipulations for the Bidder and the Buyer
1. The Bidder and the Buyer
(1) The Bidder refers to any citizen, legal person/corporate or any organization that registers and bids at the Auctioneer's.
(2) The Buyer shall be the highest Bidder approved by the Auctioneer.
(3) The Bidder shall keep the paddle registered at the Auctioneer's property properly and bear the liability for any consequences caused by any other's bidding under the Bidder's paddle.
(4) Before the auction the Bidder shall complete and sign a registration form with his own valid Identification Card, Passport or other valid identity certificates, and shall get a bidding paddle. If the Bidder is a legal person or an organization, the Bidder shall fill in and sign a registration form with the valid Business License, the legal person's Identification Card or legal authorization letter and get a bidding paddle before the auction.
(5) The Bidder shall get a bidding paddle after paying the Auctioneer deposit as required in Notice to the Bidder in the Catalogue, unless otherwise agreed by the Auctioneer and the Bidder. After the auction, those who fail in bidding and do not owe money to the Company may get back their deposit with no interests within 12 working days. The Buyer shall pay the total price of the auction article in full and take away the lot within 7 days after the successful bidding. The deposit already paid by the Buyer shall be deducted as part of the total purchase price. If the Buyer fails to pay the amount in full within 7 days, the Auctioneer shall confiscate the deposit at the Auctioneer's and pursue the Buyer's liability.
(6) The entrance of the Bidder into the auction hall shall imply that he shall abide by this document and other regulations of the Auctioneer.
(7) The Bidder will raise his paddle on the premise that he agrees with the bidding increment. Any bid lower than the increased price shall be refused, except when the auction specialist of the Auctioneer adjusts the price on the spot.
(8) The Bidder shall be responsible for his bid at any price, once the bidding is confirmed as successful after the Auctioneer hammers down or declares the sale valid in other open ways. The highest bidder shall sign a confirmation order for the deal on the spot and he shall never pull back, otherwise he shall be legally responsible for his bid.
2. Trust bid
(1) The Bidder shall take part in the auction himself. If it is impossible for him to be present at the auction, he shall trust the Auctioneer as his agent, but the Auctioneer shall not be responsible in case that the bidding is unsuccessful or the agent makes mistakes or neglects his duties in the course of bidding. If there are two or more bidders offering the same trust price, the one who reaches the Auctioneer first shall prevail.
(2) The Bidder who intends to trust the Auctioneer as his agent to bid shall sign a valid written authorization bid order and submit it to the Auctioneer to pay the deposit no late than 24 hours before the auction date. The Bidder shall pay off the rest within 7 days after the auction.
(3) The Bidder is permitted to trust other persons to bid and will be responsible for the trustee's bidding at the Auctioneer's. The Bidder registered at the Auctioneer's will be held responsible for the bidding and its result if others bid under the Bidder's paddle regardless of being confirmed by the Bidder or not.
(4) If the Bidder trusts the Auctioneer and other entrusted persons to bid, he shall be bound by the Conditions of Business and responsible for the bidding results. The Bidder shall bear the liability resulting from the bidding by the Auctioneer's staffs and other entrusted persons.
3. Caption or photo to an auction catalogue
(1) The captions, photos and introductions provided by the Auctioneer are not a formal publication, but a notice on the forthcoming auction. Parties involved are bound by the Conditions of Business.
(2) Statements of the auction article on the catalogue or in other forms regarding its author, origin, date, history, size, material, mount, ownership, authenticity, source, condition, estimated price or artistic value are for the Bidder's reference only. It is not a guarantee by the Auctioneer.
(3) If there is any difference in color, light and shade between the auction article's photos on the catalogue and the original one caused by photography or printing, the original one shall prevail.
(4) If an auction article is printed on the catalogue by the Auctioneer, and no caption or photo for it is available, it does not mean the article has no defect. If a particular defect has already been stated, it does not mean it has no other defects.
(5) The Auctioneer shall undertake no guarantee for the authenticity and quality of any article. The Bidder shall authenticate or use other means (including asking for the opinions of experts) before the auction day to examine the original piece to judge if it is genuine and know about the quality of the article he intends to buy. Once he takes part in the bidding, he shall be considered to have exercised the above rights and acknowledged the auction article's status quo (including defects). The bidder is considered willing to be legally responsible for his bidding of a certain auction article, and he will never cancel his bid or refuse to pay the purchase price, commission and other expenses under any excuse whatsoever; otherwise the Auctioneer shall pursue the Bidder's liability in accordance with the Conditions of Business.
4. Facilities in the auction hall
The foreign exchange rate offered by the currency-exchange converter available in the auction hall is for the Bidder's reference only. The Auctioneer shall not be held responsible for the discrepancy between the foreign exchange rate proposed by The People's Bank of China and the one offered on site.
5. Commission
After the successful bidding, the Buyer shall pay the Auctioneer 15% of the“hammer price”as commission. If the Buyer refuses to pay the commission, the Auctioneer shall have the right to pursue the Buyer's liability, but also have a lien on the auction article the Buyer shall collect.
6. Payment and delivery of the auction article
(1) After a successful bidding, the Buyer shall pay the price in full and pick up the article or pay off the rest and pick up the auction article from the auctioneer no late than 7 days after the auction.
(2) The payment shall be paid in RMB. In the event that the Buyer makes payments in currency other than RMB, the payment will be made at the foreign exchange rate announced by the People's Bank of China on the day of the payment.
(3) The Buyer will not get the ownership of any auction article unless he pays the total amount of the purchase price and commission. The Buyer will not collect any one of the articles before he pays off all amounts due and commission.
(4) The Buyer shall collect the article within 7 days of its sale. After the specified date, the Buyer shall be liable to pay transportation fee, storage and all the other charges. The Auctioneer shall not be responsible for the consequences caused by the Buyer's delay.
(5) Once the Buyer allows the Auctioneer to arrange packing and transportation, the Buyer is deemed as trusting the Auctioneer as his agent out of his will. The Auctioneer shall not be responsible for any damage to the article in the process of packing or transportation.
7. The Buyer's liabilities to an auction article after the successful bidding
After the day when the article is sold, the Buyer shall be responsible for the article he has purchased. Even if the article is still kept by the Auctioneer or an agent, the Buyer shall be responsible for the losses or damages not caused by the Auctioneer's intentional act during the keeping period.
8. Remedies for arrears and deferred collection of auctioned articles
If the Buyer fails to pay the amount in full or does not take the auction article away, the Auctioneer has the right to terminate the agreement without any reason and be entitled to exercise one or more rights as follows without informing the Buyer in advance:
(1) Bring a suit to the court where the Auctioneer is under jurisdiction against the Buyer for his breach of contract, and demand the Buyer to pay the hammer price, commission and other expenses as well as compensation for all the losses for his breach of contract (including, but not limited to fees for lawyer's first, second instance and review as well as prosecution procedure. Every procedure shall be no more than 7% of the value of the subject matter of the action or the subject matter of execution to be applied for, and guarantee of attachment).
(2) Do not transfer any one of the articles at the Auctioneer to the Buyer.
(3) Denounce the defaulter by name and his default practice through news media.
(4) Sell the article again by auction or by other means. If the Auctioneer puts the concerned article in auction again or sells the article, the Buyer shall pay the commission which himself and the Seller should have paid in the previous auction. If the article is auctioned/sold at the price lower than the original one, the Buyer shall pay the difference to the Auctioneer. If the article is auctioned/sold at the price higher than the original one, the surplus shall go to the Auctioneer or the Seller, which does not exempt the original Buyer from bearing the liability for any breach of contract.
(5) From the 8th day after the sale date, the Auctioneer shall charge the Buyer interest at a rate of 0.05% per day and storage fee at a rate of 0.03% per day on the due and unpaid amount until such a payment is made fully, unless otherwise agreed by the Buyer and the Auctioneer. If the Buyer stalls the payment, the interest and storage fee accrued due to the delay as well as other losses caused to the Auctioneer accordingly shall be paid as well as the purchase price and other amounts the Buyer shall pay to the Auctioneer.
(6) The deposit shall not be returned to the Buyer. And the Buyer shall pay 30% of the unpaid amount to the Auctioneer as a penalty.
(7) In the event that the Buyer fails to pay any one of the articles at the agreed time according to the Conditions of Business after the successful bidding of several articles under the same bidding paddle, the Auctioneer shall not return all the deposits to the Buyer. The Buyer has no right to take away any one of the articles before he pays off in full.
(8) Within 7 days of the successful bidding, if the Buyer fails to pay the due amount to the Auctioneer and the Seller proposes to retrieve the article, the contract between the Auctioneer and the Buyer shall be deemed as terminated upon the approval of the Auctioneer. The Auctioneer, however, still has the right to require the Buyer to take the liability.
(9) After the successful bidding, if the Buyer fails to make due payment, the Auctioneer shall have the right to entrust a third party to collect all or part of the default payment from the Buyer.
9. Statement of Guarantee
According to the Auction Law of the People's Republic of China, the Auctioneer declares that the introduction and comments, including photos, pictures, slides and news reports about any auction article made by any one of the agents are for reference only, and can never be interpreted as a sort of guarantee. The Auctioneer undertakes no guarantee for the authenticity and quality of any article. So the Buyer (including the trustee) shall examine the auction article in person and be legally responsible for his bidding.
Part II Main Stipulations for the Seller
1. The Seller and guarantee
(1) The Seller shall be the auction truster. The Auctioneer shall take the truster as the legal owner of a certain property in the absence of particular statements; if the article is a co-owned property, the Auctioneer shall take the truster as the representative of the co-owners and deem that the truster has got the permission in the absence of the truster's statements.
(2) The Seller shall show his Identification Card or other valid identity certificates, together with relevant certificate about the potential auction article when he intends to trust the Auctioneer to sell his article by auction. The Seller should also state the origin and content of the article to the Auctioneer and sign a“Consignment Agreement” with the Auctioneer.
(3) The Seller shall have the“right of disposal”or ownership of the article trusted to the Auctioneer for the sale, and he shall be legally responsible for all disputes caused by exhibition, propaganda, publication, auction and so on, hence the Seller shall compensate the Auctioneer for any economic loss and defamation arising from the disputes concerned.
(4) The Seller shall provide the Auctioneer with all kinds of information he knows or ought to know, regarding the origin and defects of the potential auction article, so as to facilitate the Auctioneer to check the article.
(5) The Seller shall not bid his trusted auction article nor trust or employ others to bid for the trusted article.
2. As for the article trusted by the Seller, the Auctioneer shall be fully entitled to handle the following matters:
(1) To decide whether a certain article is fit for auction, and the time, place, terms and by which means the auction will be held.
(2) To introduce and comment on any auction article in the catalogue and through news media.
(3) To terminate the agreement (withdraw an article) any time before the auction day, or to adjust its base price after negotiating with the Seller.
3. The base price
(1) All auction articles shall have their respective base price. The Seller shall have the right to reach a written agreement with the Auctioneer about the base price. If the Seller wishes to change the base price agreed by both parties, he shall get the approval from the Auctioneer first.
(2) The Auctioneer shall not sell an auction article at a price that is lower than the base price. Under the condition that the Auctioneer guarantees that the Seller's actual proceeds is no less than the amount he shall get when the article is sold at the base price, the Auctioneer shall auction the article at a price that is lower than the base price.
4. Auction on consignment
It refers to the way in which the Seller negotiates with the Auctioneer before signing a Consignment Agreement according to which the Seller shall get the auction proceeds after paying the Auctioneer a certain proportion of auction fee and commission on the basis of the hammer price.
5. Commission and other charges
(1) Except otherwise regulated, commission accounts for 10% of the hammer price, while the Seller will not be charged in case the trusted article goes unsold.
(2) Premium accounts for 1% of the hammer price; printing and photography fees can be referred to in the Auctioneer's charging list.
(3) If the Seller refuses to pay the above-mentioned commission and other charges, the Auctioneer shall deduct the amount from the auction proceeds after the sale of the article.
(4) The Seller shall acknowledge all kinds of reasonable expenses the Auctioneer collects from the Buyer according to the agreements.
6. Insurance
(1) Except otherwise hinted by the Seller, the Auctioneer has the right to buy insurance for the article or keep the article from the day when the Seller and the Auctioneer sign a Consignment Agreement and the Seller trusts the article to the Auctioneer to the day when the Buyer completes full payments of his bidding or within 35 days after the auction date.
(2) The Seller shall pay 1% of the hammer price as premium. If the article fails to be auctioned, the Seller shall pay 1% of the base price as premium. If the article fails to be auctioned, the Seller shall pay 1% of the base price as premium.
(3) If the Auctioneer is demanded by the Seller in written form not to effect the insurance of his auction article, then the Seller shall be responsible for all the accidents while the Auctioneer shall not be responsible for them. And the Seller shall be liable if there are economic losses and expenses caused by the accidents.
(4) The Auctioneer shall not be responsible for the damages caused by insects and/or change of weather or other irresistible causes to the auction article. If there are other reasons accounting for the damage done to the article and indemnity is needed, then the matter shall be handled in accordance with relevant Chinese insurance laws and regulations. Under the condition that the insurance company agrees to pay the claimed damages, the Seller shall get the rest of the indemnity after deducting the fees (exclusive of commission) he shall pay to the Auctioneer.
7. Payment of proceeds of the auction
(1) If the Buyer has paid off the price in full to the Auctioneer and there is no dispute whatsoever, the Seller shall get the rest of the sale proceeds after deducting the fees as regulated in the Consignment Agreement and Conditions of Business starting from the 35th day after the sale date.
(2) If the Buyer pays the due amount after (or more than) 35 days of the auction date to the Auctioneer, the Auctioneer shall pay the proceeds to the Seller as regulated within 7 working days after receiving the Buyer's payment in full.
(3) RMB shall be the currency the Auctioneer shall pay the Seller after the auction, except otherwise agreed upon by both parties.
(4) According to relevant laws and regulations of the People's Republic of China, the Auctioneer should withhold the tax to the competent authority.
8. Charges for the withdrawal of auction articles
The Seller may withdraw the article before the auction date subject to the Auctioneer's consent with a written notice stating the reasons. In the case the catalogue or any other advertisements of the article have begun to be printed before the Seller's withdrawal, the Seller shall pay an amount equal to 30% of the article's base price and other expenses. In the case the catalogue or any other advertisements of the article have not begun to be printed after the Seller's withdrawal, the Seller shall pay an amount equal to 20% of the article's base price and other expenses. Any dispute or claim arising out of the Seller's withdrawal shall be borne by the Seller.
9. Unsold auction articles or contract rescission between the Buyer and the Auctioneer
If an article fails to be auctioned or the contract is rescinded between the Buyer and the Auctioneer due to any other reason, the Seller shall take the article back at his own expense within 60 days after the auction date or the contract rescission. After the expiry of such a period, the Auctioneer shall have the right to auction the article publicly. The Auctioneer shall also be entitled to demand the Seller to pay all amounts due after the article is auctioned. And the Auctioneer shall charge the Seller storage fees at a rate of 0.03% per day on the base price after the auction date or the contract rescission. The Seller shall be responsible to all the risks and accidents thenceforward.
Part III Other Rights and Duties of the Auctioneer
1. The Auctioneer shall provide services for both the Seller and the Buyer, but it shall not be responsible for any Buyer or Seller's breach of contract.
2. The Auctioneer shall be entitled to refuse any bid which comes after the hammer price, raise bidding price, withdraw any auction article and sell the article in another auction if there are any disputes.
3. The Auctioneer shall have the right to hold exhibitions, auctions, and make announcements, catalogues and other forms of publications to introduce the auction article.
4. The Auctioneer shall ask the Bidder to notice the defects in an auction article, examine the article and decide his own bidding.
5. The Auctioneer shall have the right to determine, together with the Seller, the base price, and to determine the name of currency in auction, means of auction and bidding increments.
6. The Auctioneer shall keep it confidential concerning the Buyer and the Seller in accordance with the laws of the People's Republic of China and the business rules of the Auctioneer; the Auctioneer shall protect the rights and interests of the Buyer, the Seller and the Auctioneer from infringement.
7. According to the agreement between the Auctioneer and the Seller, the Seller shall be the owner of the auction article and shall be legally responsible. The Auctioneer shall not accept or hear any cases regarding different opinions from other persons about the ownership of the auction articles the Auctioneer is going to sell. If the Auctioneer receives an announcement or decision made in accordance with law from the judicial departments before the auction, the Auctioneer shall have the right to stop the auction.
Part IV Definitions of the Terms Used in This Document and Other Terms
The definitions of the terms used in this document and catalogue are as follows:
1. “The Company”, “The Auctioneer” refer to the Xiling Yinshe Auction Co., Ltd.
2. “Different kinds of expenses” refers to expenses collected by the Auctioneer for insurance, catalogue and so on.
3. “Imitation” refers to an auction article different from the caption described in catalogue, including its author, origin, date, period and background.
4. “Auction article” refers to an article or property rights consigned by the Seller to the Auctioneer for sale in the auction.
5. “Base price” refers to the lowest hammer price that should be reached in the auction.
6. “Estimated price” refers to the estimated price of each article shown in the Auctioneer's catalogue. The price is subject to alteration.
7. “Hammer price” refers to the price of a certain auction article upon which the Auctioneer's hammer falls.
8. “Purchase price” refers to the total amount of hammer price and commission that should be paid by the Buyer.
9. “Commission” refers to the expenses collected on a certain percentage by the Auctioneer from both the Buyer and the Seller.
10. “Auction proceeds” refers to the amount paid by the Auctioneer to the Seller after deducting commission calculated by certain rate, other expenses and the amount that the Seller should pay to the Auctioneer on the basis of the hammer price.
11. “Sale/Auction date” means the date on which the Auctioneer confirms the sale of any article in the auction by striking his hammer or in any other public manner.
12. “Notice” refers to a notice in written form. The Auctioneer sends out notice and letters to the address provided by the Consigner, Bidder and Buyer. Once the notice/letter is sent out, it is deemed as delivered to whom is concerned.
13. “Seal” refers to a seal in an auction article. The seal's caption in the Auctioneer's Catalogue is for the Buyer's reference only.
14. “Color” in the catalogue means an auction article (a piece of Chinese calligraphy or painting) is colored.
15. “Defect” refers to authenticity and some tiny flaws in the artwork. The Auctioneer believes all works of art are subject to defects or flaws caused by nature, artists of improper preservation. So the Auctioneer shall ask the Bidder to examine the auction article if he can find any obvious or hidden defects. There is a traditional Chinese saying: “The defects cannot obscure the virtues”. In a word, the Bidder shall determine before bidding whether a certain defect counts or not.
16. The place where obligations of a contract are fulfilled refers to the place where the Auctioneer is located at.
17. The jurisdiction shall be for the court whose jurisdiction area includes the domicile of the Auctioneer. The court shall exercise jurisdiction over disputes in the performance of Consignment Agreement and the contract between the Auctioneer, the Bidder, the Seller and other interested parties.
18. The contact or identification information registered by the Seller, Bidder or Buyer at the Auctioneer is deemed as the information based on which the Auctioneer makes contact with. Notice or other legal documents sent by the Auctioneer or agent and judicial authority using such information to the Seller, Bidder and Buyer is deemed to have been served. For any change in such information, a written notice to the Auctioneer is necessary, otherwise the change is invalid.
*If there are any differences in the comprehension of the English version of the document, the Chinese version shall prevail.
*The right to interpret the Conditions of Business is reserved by the Auctioneer.
