一、基本案情

 

    2021年5月，电力公司与电力用户签订《供用电合同（高压）》，约定用户用电类别为“大工业用电”，用户受电点有2台变压器，用电容量分别为25500kVA、16000kVA，用电容量合计为41500kVA，基本电费按照变压器容量计算，用户擅自超过合同约定容量用电的，按三倍私增容量基本电费计付违约使用电费。2021年9月，电力公司对用户用电情况进行现场用电检查，经检查发现该用户存在变压器实际容量与约定容量不符情况。后经检测，合同约定容量为16000kVA变压器的实际容量为31500kVA，该变压器实际用电容量与合同约定用电容量相差达15500kVA。电力公司认为用户已经构成私自超过合同约定容量用电（私增容量）的违约用电行为，遂根据该变压器实际使用时间，要求用户补交其使用月份期间相差容量的基本电费1684333.40元，功率因数调整电费相差部分32450.37元，以及私增容量基本电费1684333.40元的三倍的违约使用电费5053000.20元。经多次沟通协商，用户补交了前述差额基本电费及功率因数调整电费合计1716783.77元，但对于5053000.20元的三倍违约使用电费拒绝补交。电力公司遂将其诉至法院，要求承担三倍违约使用电费5053000.20元以及电力公司发生的律师费和诉讼费用。

     案件开庭前，用户提起反诉，主要诉求为，要求电力公司向其退还其此前补交的相差容量的基本电费1684333.40元，功率因数调整电费相差部分32450.37元，合计1716783.77元费用。主要理由为，其没有私增容量的故意，以及其没有超容量用电的实际行为，电力公司向其补收费用没有依据。
2.处理结果

    本案在一审开庭后，用户向法院申请撤回了对电力公司的反诉。对于主诉案件，经法院主持调解，用户及电力公司自愿达成协议，由用户分期向电力公司全额支付三倍违约使用电费5053000.20元以及电力公司所发生的律师费，诉讼费由电力公司自行承担。

 

二、法律评析

 

     本案中，用户主张其不存在私自增容的理由主要有两方面，一是变压器约定容量与实际容量不一致事出有因，其亦不知情。用户主张其受电工程全权委托案外人施工方进行施工，造成本案变压器实际容量与约定容量不符，系“施工方为保守起见，私自增大了容量”，其并不知情，其没有私自增容的故意。二是其没有超容量用电的实际行为。其认为虽然其变压器实际容量超过约定的容量，但是其在实际用电过程中的用电负荷等对应的实际用电容量并未超过合同约定，故其不存在私增容量用电行为。

    对于用户的辩解，电力公司予以反驳：其一，通常情况下，变压器的容量大小与其价格成正比，容量越大价格也越贵。而用户为了将责任推卸给线路建设施工安装单位，不顾施工单位会极力降低成本来提高利润的常理、常识，反而说是施工单位擅自将原计划的变压器更换为更大容量（价格更贵）的变压器，该观点不合常理，无法让人信服。另外，根据《民法典》第五百九十三条的规定，“当事人一方因第三人的原因造成违约的，应当依法向对方承担违约责任。当事人一方和第三人之间的纠纷，依照法律规定或者按照约定处理”。因此，即便假设用户不知情的理由属实，但其存在违约用电行为的情况下，其亦应向电力公司承担违约责任。至于其与施工方之间的纠纷，应当由其通过施工合同关系另行处理。由于本案的供用电合同纠纷存在合同相对性问题，故用户欲将违约责任转嫁给案外第三人的做法无法得到支持。其二，用户关于其没有超容量实际进行用电的辩解亦不能成立。根据供用电合同“术语定义”的约定，用电容量是“指用电方申请、并经供电方核准使用电力的最大功率或视在功率。”热备用是指“不需经供电方许可，一经操作即可接入电网的设备，本合同视为热备用。”同时，《供电营业规则》第八十五条第一款规定，“以变压器容量计算基本电费的用户，其备用的变压器（含高压电动机），属冷备用状态并经供电企业加封的，不收基本电费；属热备用状态的或未经加封的，不论使用与否都计收基本电费。用户专门为调整用电功率因数的设备，如电容器、调相机等，不计收基本电费。”也就是说，“实际使用容量”并非指用户具体用电行为产生用电容量，只要用户变压器投产、接入电网的，用电方均应该交纳该变压器的所产生的基本电费；变压器容量即用电容量，即使用户不存在用电，其用电容量亦是确定的，且需要缴纳容量费。在用户变压器容量比其申报及合同约定容量更大的情况下，就其处于热备用状态的变压器，无论其有无实际使用，均构成私自增容的违约用电行为。
2.电力公司所主张的三倍违约使用电费是否过高，应否调减？

    用户主张电力公司并无损失，所主张的三倍违约使用电费已经远超银行贷款利息以及民间借贷最高标准，应当予以调减。电力公司认为其主张违约使用电费完全符合《电力供应与使用条例》第四十条及《供电营业规则》第一百条的规定，且双方供用电合同亦进行了明确约定，本案违约使用电费不应调减。因为不论是原《合同法》第一百二十三条还是现《民法典》第十一条，均规定了其他法律对合同有特别规定的，依照其规定。这说明法律对合同有特殊、特别规定的，应当优先适用；而对于“擅自超过合同约定容量用电”的这一违约用电行为，《民法典》在没有明确规定的情况下，来适用《电力法》《电力供应与使用条例》《供电营业规则》等电力法律法规所规定的、且合同已明确约定的方式处理是必要的、合理的，也符合特殊法优先适用原则。本案电力公司所主张的违约使用电费，本身即天然带有“违法惩罚性”（强制性、法定性）的性质，与一般合同违约金的性质是完全不同且不能混为一谈。且司法实践中，亦有案例支撑前述意见，例如在本案电力公司所委托的弘石律所此前代理的两宗类似案件中【案号：（2020）云04民终681号、（2021）云04民终1495号】，终审法院完全支持三倍违约使用电费不调减的意见。

 

三、管理启示

     供电企业在日常工作中应当加强对用户尤其是重点用户进行电力专业知识、电价政策、电力相关法律、法规、案例的宣传力度，使用户尽可能了解供用电方面的相关法律法规和专业知识，知道违章用电可能存在的严重后果。尽可能从源头上避免或减少用户违章用电行为的发生。同时在日常工作中应当加大用电检查力度，对于用户存在的违章用电等情况，争取尽早发现并及时解决问题。
2.电力用户应当加强用电知识的学习，做到依法依规用电

    电能作为国民经济的重要能源，对于生活生产均不可缺少。而供用电合同作为一种特殊的合同类型，除涉及供电企业及用户自身权益外，还关系公共安全，用户的用电行为与整个电网的运行息息相关。因此，对于电力用户而言，尤其是用电大户，应当尽可能了解相关电力法律、法规和政策文件，主动进行自我约束，规范、安全、依法依约用电，避免违章用电行为的发生。否则，发生违章用电行为，既需要承担高昂的违约使用电费，甚至可能会因自身不规范的用电行为冲击电网运行，引发严重的电力运行事故。本案案件承办人为法风管团队许灿虎、李鹏吒律师。

 

 

A、Case Brief

 

1.Basic facts of the caseIn

     May 2021, the power company signed a "Power Supply Agreement (High Voltage)" with an electricity user, specifying the user's electricity category as "Large Industrial Electricity" with 2 transformers at the power receiving point. The respective electrical capacities of the transformers were 25,500 kVA and 16,000 kVA, with a total capacity of 41,500 kVA. The basic electricity charges were calculated based on the transformer capacity, and If the user exceeds the contractually agreed capacity without authorization, they shall be liable to pay three times the amount of the basic electricity charges for the privately increased capacity as breach of contract damages. In September 2021, the power company conducted an on-site electricity inspection of the user's usage and found a discrepancy between the actual capacity of the transformers and the agreed capacity. Subsequent testing revealed that the actual capacity of the 16,000 kVA transformer, as per the contract, was 31,500 kVA, resulting in a difference of 15,500 kVA between the actual and agreed capacity. The power company believed that the user had engaged in breach electricity usage by exceeding the contractually agreed capacity without authorization (privately increasing the capacity). Therefore, based on the actual usage period of the transformer, the power company demanded that the user pay the following electricity charges due to the breach of the contract: RMB1,684,333.40 for the difference in basic electricity charges, RMB32,450.37 for the difference in power factor adjustment charges, and RMB5,053,000.20, three times the breach electricity charges for the privately increased capacity's basic electricity charges. After multiple communications and negotiations, the user paid the aforementioned outstanding amount for the difference in basic electricity charges and power factor adjustment charges, totaling RMB1,716,783.77. However, the user refused to pay the three times breach electricity charges of RMB5,053,000.20. Subsequently, the power company filed a lawsuit against the user, seeking payment of the three times breach electricity charges of RMB5,053,000.20, as well as the legal service fees and litigation costs related.Before the court hearing, the user filed a counterclaim, primarily requesting the power company to refund the previously paid difference in basic electricity charges (RMB1,684,333.40), the difference in power factor adjustment charges (RMB32,450.37), totaling RMB1,716,783.77. The main argument for the counterclaim are that the user did not act with the intention to privately increase the capacity and did not engage in actual overcapacity electricity usage. Additionally, the user argues that the power company has no basis for demanding payment from them.
2.Outcome of the CaseAfter

    the first-instance court hearing, the user applied to the court to withdraw the counterclaim against the power company. Regarding the principal claim, the court mediated the case, and the user and the power company voluntarily reached an agreement. The user agreed to pay the full amount of the three times breach electricity charges, totaling RMB5,053,000.20 by installment, as well as the retaining fee incurred by the power company. The litigation costs would be borne by the power company.

 

 

B、Legal Analysis

    In this case, the user's arguments against privately increasing the capacity are mainly twofold. First, they claimed that the discrepancy between the agreed and actual capacity of the transformer was not their fault, and they were unaware of it. They argued that the electrical construction project was fully entrusted to an outer party contractor, which resulted in the actual capacity of the transformer not matching the agreed capacity. They claimed that the contractor "increased the capacity without authorization for the sake of safety," so they were unaware of it. Therefore, it means they denied any intention to privately increase the capacity. Second, they argued that they did not engage in actual overcapacity electricity usage. They believed that they did not engage in actual overcapacity electricity usage. They argue that although the actual capacity of their transformer exceeded the contractually agreed capacity, their actual electricity consumption, including the corresponding load, did not exceed the contractual agreement. Therefore, they assert that there was no privately increased capacity electricity usage.

     The power company countered the user's defense. Firstly, they stated that in general, the price of transformers is proportional to their capacity. The larger the capacity, the higher the price. The power company found it illogical for the user to claim that the outer party construction contractor unilaterally replaced the originally planned transformer with a larger capacity (and more expensive) transformer to shift the responsibility. It was against common sense, as construction companies tend to minimize costs to maximize profits. Furthermore, according to Article 593 of the Civil Code of the People’s Republic of China, "A party who breaches a contract due to a third person’s reason shall bear default liability to the other party in accordance with law. The dispute between the breaching party and the third person shall be handled in accordance with the provisions of law or their agreement." Therefore, even if it were assumed that the user was unaware, they would still be liable for breach of contract due to the overcapacity electricity usage. Any dispute with the outer party construction contractor should be separately resolved through the construction contract. Since this case involves a relative contractual dispute regarding the power supply agreement, the user's attempt to transfer the responsibility of breach to a third party shall not be supported. Secondly, the user's argument that they did not engage in actual overcapacity electricity usage is also untenable. According to the definition of "electricity consumption capacity" in the "Term Definitions Clauses" of the power supply agreement, "The capacity" refers to the "maximum power or apparent power applied for by the electricity user and approved by the power supplier." "Hot standby" refers to "equipment that can be connected to the power grid without the permission of the power supplier and can be operated immediately. " Furthermore, according to Article 85(1) of the Power Supply Business Rules ，"For users whose basic electricity charges are calculated based on the transformer capacity, if their backup transformers (including high-voltage motors) are in a cold standby state and sealed by the power supply company, no basic electricity charges shall be levied. However, if the backup transformers are in a hot standby state or not sealed, basic electricity charges shall be levied regardless of whether they are being used. Equipment specifically used for adjusting the power factor of electricity consumption, such as capacitors and phase shifters, shall not be subject to basic electricity charges." In other words, "actual consumption capacity" does not refer to the specific electricity usage resulting from the user's behavior. Once the user's transformer is put into operation and connected to the power grid, they are required to pay the basic electricity charges for that transformer's capacity, even if they do not consume electricity. The transformer capacity is equivalent to the electricity consumption capacity, and even if the user does not engage in electricity consumption, the electricity consumption capacity is still determined, and capacity fees must be paid. In cases where the user's transformer capacity exceeds the declared and contractually agreed capacity, the presence of a transformer in a hot standby state, regardless of actual usage, constitutes a breach of electricity usage by privately increasing the capacity.
2.Is the three times breach electricity charges claimed by the power company excessive and should it be reduced?

     The user argued that the power company did not suffer any losses, and the claimed three times breach electricity charges exceed bank loan interest rates and the highest standards for private lending. Therefore, they claimed that the charges should be reduced. The power company maintained that their claim for the breach electricity charges is fully in line with Article 40 of the Regulations on Power Supply and Utilization and Article 100 of the Power Supply Business Rules. Additionally, the breach electricity charges were explicitly agreed upon in the supply agreement. Therefore, the power company argued that the breach electricity charges should not be reduced. According to Article 123 of the former Contract Law and Article 11 of the current Civil Code, where there are other laws providing special provisions regulating civil-law relations, such provisions shall be followed. This indicates that when there are special and specific provisions in the law for a contract, they should be given priority. In the case of breach electricity usage exceeding the contractually agreed capacity, in the absence of explicit provisions in the Civil Code, applying the provisions of the Electricity Law, the Regulations on Power Supply and Utilization and the Power Supply Business Rules, which are specifically provided for in electricity laws and regulations and clearly stated in the contract, is necessary, reasonable, and in line with the principle of giving priority to special laws. The breach electricity charges claimed by the power company inherently possess the nature of "legal punishment" (mandatory and statutory), which is entirely different from ordinary contractual penalty charges and cannot be confused with them. Furthermore, there are precedents in judicial practice that support the above opinion. For example, in two similar cases previously represented by the law firm appointed by the power company in this case [Case Numbers: (2020) the Intermediate People’s Court of Yuxi City of Yunnan Province Civil Final Appeal No. 681, (2021) the Intermediate People’s Court of Yuxi City of Yunnan Province Civil Final Appeal No.1495], the final courts fully supported the opinion of not reducing the three times breach electricity charges.

 

C、Management Insights

     Power supply companies should enhance the promotion of electrical professional knowledge, electricity pricing policies, electricity-related laws, regulations, and case studies to users, especially key users, in their daily work. This aims to provide users with a better understanding of the relevant legal regulations and professional knowledge between the power supply and electricity consumption, as well as the serious consequences that may arise from electricity usage in violation of regulations. Efforts should be made to prevent or minimize instances of electricity usage in violation of regulations from occurring at the source. Additionally, power supply companies should intensify electricity inspections during their daily work, aiming to detect and resolve cases of electricity usage in violation of regulations by users as early as possible.
2.Electricity users should enhance their understanding of electricity knowledge and ensure compliance with laws and regulations in electricity usage.

     Electricity is an essential energy source for national economic activities and is indispensable for daily life and production. The power supply agreement, as a special type of contract, not only involves the rights and interests of power supply companies and users but also affects public safety. The electricity usage behavior of users is closely related to the operation of the entire power grid. Therefore, electricity users, especially large-scale users, should make efforts to understand relevant electricity laws, regulations, and policy documents. They should proactively comply with the law, regulations, and contractual obligations, ensuring standardized, safe, and lawful electricity usage, and avoiding electricity usage in violation of regulations. Otherwise, users may not only face high breach electricity charges but also risk impacting the operation of the power grid and causing serious power accidents.

     The case was handled by the G-Stone Law firm, Legal Risk and Management Team, attorneys Xu Canhu and Li Pengzha.