Index
administrative law, 2 Adoption Law, 31 agency, 70, 71–79, 86
applicability, 73
authority of an agent, 76–77; liability, 75–77
definition, 71–72 ostensible, 77–78 scope, 73–74
sub-delegation of authority and, types under Chinese law, 74–76; by
designation, 75–76; by operation of law, 75
Anti-Unfair Competition Law, 271 attribution, 93, 94, 105, 109, 118, 168,
272, 291
‘bad faith’ concept, 158–59 basic law. See constitutional law Book on Obligations, 193, 270
breach of contract, 24, 113, 176, 195, 196, 203, 208, 210, 214, 227, 231–35 passim, 252, 263–64, 270, 274 incurring liability, 254–55
liability exemptions, 255–56 remedies, 256–62
continuing performance, 256–57 deposits, 259
liquidated damages, 258–59 remedial measures, 257–58
paying damages, 259–60; duty to attenuate loss, 261–62; reasonable prediction, 260–61
Bright Road Tobacco Company. See Luo Daxing (case study)
burden of proof, 218, 235, 238, 278–81, 286, 287
ordinary tort cases, 292
special tort cases, 293; the alleged wrongdoer, 293–94
business law, 2, 16, 195. See also commercial law
business vehicles, 137
characteristics of law, 3–8
China’s Company Law, 19, 22, 24, 248 China’s Constitution. See Constitution China’s Constitutional Law, 11, 16–19 passim, 32, 90, 96–102 passim, 106, 111, 131, 132, 133, 135, 140, 146, 16
of 1954, 133–34 of 1975, 135
of 1982, 135–36
China’s General Principles of Civil Law. See General Principles of Civil Law
Chinese Communist Party, 89, 132 Seventeenth National Congress
(2007), 136–37 Chinese legal system
branches, 19–20
Index 327
components, 15
current legal framework, 16–19 history, 15–16
Chinese People’s Political Consultative Conference, 128, 132
First Plenary Session (1949), 132 civil capacity, 37–39, 51, 52, 85, 86
for civil conduct, 39, 198; full capacity, 39–40, 60; limited capacity, 40, 60; no capacity, 40–41, 60
for civil rights, 38–39, 198 for natural conduct, 39
full capacity for civil conduct, 39–40 in natural versus legal persons, 54 civil conduct, judicial declaration for, 41 limited capacity, 69–70
of a natural person, 37–38 See also juristic acts
civil code, 2, 9, 10, 21, 22, 28, 30, 95, 195
under the Qing, 15
in the Republic of China, 193, 270 civil conduct, 37, 38, 39–41
civil juristic act. See juristic act civil law
and private law, 14
definition: general, 1; in General
Principles of Civil Law, 23 distinction from common law, 1, 11 doctrines: good public order and social
customs, 288 nature of, 22–24
structural components, 21–24 See also private law
civil law regime, 22, 30, 91, 103, 111, 138, 269, 271
civil law system, 1, 2, 9, 14, 21, 27, 103 catagorization of law in, 11–14 distinction from common law, 10–11
historical development, 9–10
See also non-property rights; property rights
Civil Litigation Law, 9, 12, 15, 20, 45, 47, 292
civil objects. See civil subjects: things civil rights, 15, 21, 23, 25, 26, 30,
31–37, 45–48 passim, 51, 54, 55, 60, 81, 83, 85, 86, 99, 111, 114, 137, 155, 197, 198, 269, 271–74, 276
capacity for, 38–39 categorization of, 33 definition, 31–33
contrast with civil obligations, 31 under GPCL, 99
civil subjects, 2, 21, 26, 28, 30, 31, 37–57, 85, 95, 105, 137, 197, 272 legal persons, 51–55, 86; civil
capacity, 54–55; establishment of, 53; types, 52–53
natural persons, 37–50, 85 things, 55–57; classification of,
55; critical and non-critical components of, 56; definition,
55–56; distinction from fruits, 56–57
See also civil capacity; civil objects collective ownership, 92, 94, 96, 97, 98, 101, 133–37 passim, 140–43, 169,
170, 171, 188
common law systems, 1, 8–9 Common Principles, 132, 133
company law. See China’s Company Law Constitution, 94, 96
constitutional law, 2, 6, 9, 11, 14, 15, 19, 24, 27, 132
See also basic law, public law; protection of property
Constitutional Law. See China’s Constitutional Law
328 Index
contracts, 1, 12, 14, 21, 23, 24, 27, 30, 51, 64, 82, 87, 101, 107, 130, 131, 169, 171, 193–96 passim, 198, 203, 211, 213, 216, , 220, 224–27 passim, 229, 231, 249, 254, 263
contract formation, 196–98 contract law, 12, 14, 193
Contract Law, 12, 19, 20, 22–24 passim, 30, 58, 63–71 passim, 74, 82, 177, 181, 194–268, 314
alteration, 241–43 assignment, 243–48 consideration, 198 contract formation, 196 contractual terms, 213–18
discharge, 249–54; by agreement, 250–52; by exercising a predetermined termination right, 250–52; by mutual decision, 250; effects, 253–54; obligations, 253; under legal prescriptions, 252–53
general provisions, 194–95 invitation to treat, 201
offer and acceptance, 198–210 regime, 195–96
scope, 198
undecided validity, 223–26; improper authorization of agency, 224–25; limited capacity, 224
voidable contracts, 221–23; right to modify, 222; right to revoke, 222; without right to transfer other people’s property, 225–26
Contract Law of the People’s Republic of China. See Contract Law
contract performance, 226–41 Chinese doctrines: allowing
performance deviation, 228–29; economic efficiency, 228; good faith, 227–28;
comprehending terms, 230
involving a third party, 231–32 right of revocation , 239–41 right of subrogation, 236–39 right to decline demand for
performance, 232–35 rights, 233
rules on clarifying ambiguity, 230 supplement, 229–30
creditor’s right. See obligee’s right criminal law, 2
economic development under Constitutional Law, 131–37
Environmental Protection Law, 271 equality
doctrine, 25–26
in General Principles of Civil Law, 26 estate tax, 32
‘Explanation on China’s Draft Property Rights Law’, 93–95
See also Wang Zhaoguo expropriation of property, 144–49, 150
compensation, 146
Decree on the Expropriation of Houses over State-owned Land and Compensation, 147
farmland, 145
Huang Zhenyun (case study). See Huang Zhenyun
fairness and impartiality doctrine, 26
in General Principles of Civil Law, 26 Farmland Contracting Law of 2002, 103,
170
Food Safety Law, 271
force majeure, 84, 172, 216, 243, 252, 255, 256, 267, 286, 306, 309–10, 316
formation and alteration, 112–14 actual delivery, 125 authority’s conduct, 123–24
correction of particulars, 121 creating a uniform system, 118–20 dissent, 121–22
immovable property, 117–26 pre-notice of, 122–24 public notice, 114
methods, 114–17 summary, 125–26 substituted, 126–27
with transferor’s continued possession, 127
principle of distinction, 113–14 See also property rights
forms of legal systems, 8 French Civil Code, 21 fruits
as a term in civil law jurisdiction, 56–57
natural, 57 legal, 57
fundamental civil law doctrines, 24–27
general law, 11–12
in Law on Legislation, 18–19 General Principles of Civil Law (GPCL),
vii, 2, 22, 24, 26, 30, 38, 40–59 passim, 62–70, 73–76 passim, 78, 79, 82–85 passim, 90, 91, 94, 96, 99–102, 106, 111, 196, 198, 224, 262, 270, 271, 274, 275, 276, 284, 285, 286, 296, 297, 304, 309, 311, 312, 313
German Civil Code, 21, 30 goals of law, 5–8
justice, 6 rights, 6–7 order, 7–8
‘good faith’ concept doctrine, 26–27 in contracts, 69
in General Principles of Civil Law, 27 in Property Rights Law, 158–59
Index 329
good public order and social customs doctrine, 27
in General Principles of Civil Law, 27 GPCL. See General Principles of Civil Law Guan Zhong, 89
guarantee (concept), 174–75 Guarantee Law, 94, 102–3, 118, 259
guardianship, 41–44, 73, 75, 76, 85, 198, 272, 283, 298
duties, 42–43
for mental patients, 43–44 for minors, 43
Hu Jintao, 136 ‘hukou’ system, 173
Huang Zhenyun (case study), 146–47
Implementation Rules of the Sino-Foreign Equity Joint Venture Enterprise Law, 242
individuality, definition of, 23 inheritance tax, 32
Interim Regulations on the Assignment and Allocation of Usage Rights over State-owned Land in Urban Areas, 167, 172
international law, 11, 12–13 public, 13
private, 13
judicial declarations, 87, 88 of death, 46–48
of missing status, 44–46 and personal relations, 48 revocation, 47–48
See also civil conduct
juristic acts, 21, 30, 57–71, 86, 114–15 definition, 57–58
generation, 58–59
undecided validity of, 68; act of person with limited civil capacity, 69
330 Index
an unauthorized act, 70–71 validation, 59–60; appropriate
capacity for civil conduct, 60; genuineness of intent, 60–61; lawfulness, 61
void juristic acts, 61–64; characteristics, 61–62; major grounds, 62–64
voidable juristic acts, 65–68; materially misconceived, 65–66; contrary to fairness, 66–67; rescission, 66
Kuomintang, 15, 128
Land Administration Law of 1986, 94, 103, 169, 170, 172
Law of contract. See law of obligations Law of Economic Contract, 193
Law of Economic Contract with Overseas Element Involved, 193
law of obligations (i.e. law of contract), 21, 23, 30, 83, 91, 113, 193, 270
law of property. See property rights law Law of Succession, 31
Law of Technology Contract, 193
Law on Land Contract in Rural Areas, 94 Law on Legislation
administrative regulations, 17 supremacy and precedent, 18
Law on the Administration of the Urban Real Estate, 94
Law on Prevention and Rectification of
Air Pollution, 271
Law on Prevention and Rectification of
Water Pollution, 271
Law on Protection of Consumers’ Rights and Interests, 261, 271
laws on persons, 21, 30 laws on things, 21, 30, 91
legal persons. See civil subjects: legal persons
Li Dabao. See Luo Daxing liens, 92, 93, 178, 185–87 limitation of actions, 80–85, 86
definition, 80–81 extension, 85
limitation periods, 81–83; stale claim, 80
suspension, 84 termination, 84–85
Luo Daxing (case study), 128–31
malpractice: medical, 278
Marine Environmental Protection Law, 271
Marriage Law, 19, 22, 30–31, 271 Mencius, 89
missing status
judicial declaration, 44–46 and property, 45–46
mortgages, 92, 93, 179–183, 185
Mr Qiao vs. the Ministry of Railways, 6–7 national law, 12–13
natural persons. See civil subjects: natural persons
National People’s Congress, 16, 19, 20, 22, 45, 93, 94, 95, 270
Standing Committee, 93
natural person, 31, 37–41, 42, 49, 50, 51, 53, 54, 60, 63, 305
non-basic law, 11 non-juristic acts, 115–16
non-property rights, 33, 34, 48–49
See also rights of personality, rights of personal identity
obligee, 91, 93, 94, 228, 231, 232, 234, 245, 246, 247–49 passim, 251; right, 90
Organic Law on Local People’s Congresses and Governments at Various Levels, 141
Organic Law on Urban Residents’ Committees, 141–42
ownership
in a condominium building, 104, 150–55
in the Common Principles
in GPCL: of buried or hidden property, 102; relations between neighbours, 102
joint, 154–55
of buried or hidden property, 102 of land, 96, 98–99, 101, 170
of natural resources, 101–2
See also Luo Daxing; ownership in Property Rights Law
ownership in Property Rights Law bona fide acquisition, 158–159
classification of ownership; collective,
140–43; private, 143–44; state, 137–38
‘collective’, 97, 98
exercising rights over property, 138–39, 140–43
land ownership, 98, 101 natural resources, 98, 101
‘neighboring relationship’ concept, 155–57; disputes, 155; easements, 157
parking spaces and garages, 153 ‘people’s ownership’, 96 public, 97
‘socialist public’, 97
special characteristics, 127–28 state, 96
‘state public’, 98
Partnership Law, 14, 22, 24
Patent Law, 19, 22, 271
Index 331
‘people’s ownership’. See state ownership
People’s Republic of China, 15, 20, 21, 42, 89, 128, 131, 132, 192–94, 196, 261, 270, 271, 299
performing a contract. See contract performance
personal rights and interests, 269 possession, 92
Postal Law, 271 private law, 13, 14, 24
private law autonomy, 24–25, 61 procedural law, 12
property law, 94
property ownership, 1, 95, 97–99, 111, 127, 128, 137, 145, 157
definition in the GPCL, 99 property relations, definition of, 23 property rights, 33, 48
contrast with obligee’s rights, 91 definition, 90
See also formation and alteration;
‘three specifics’
property rights law, 2, 12, 21, 22, 23, 30, 89, 91
Property Rights Law, 19, 30, 56, 57, 61, 89–192, 195
cardinal principles, 104–11; bona fide acquisition, 161–62; equal protection, 105–6; legality, 106–7
dealing with found property, 159–62 definition of ‘property rights’, 90–91 definitions of ownership, 96–98 draft law, 93
good faith acquisition principle, 109–11
mortgages, 178–83; and leases relating to the same property, 181–82; eligible properties, 180; payment sequence between, 182–83; registration, 180–81
332 Index
passage, 93–96
pledges: and mortgages, 185; liens, 185–87; of moveable property, 183–84; of right, 184–85
practical issues, 102–4
public notice principle, 108–9, 116–17
purpose, 93–95
relating to security, 174–78; general provisions, 176–78. See also guarantee
structure, 92–93
See also obligee’s rights; ownership in Property Rights Law; possession
privity of contract, 198 Product Liability Law, 271 protection of property, 96–99
and relations between neighbors, 102 owned by state, collectives,
individuals and social organizations, 100–101
under Chinese socialist system, 96–98 under GPCL, 99–102
See also ownership: of buried or hidden property; of land; of natural resources
public law, 2, 11, 13–14, 24, 37, 137 See also constitutional law
public law priority theory, 14
public ownership. See under ownership
Qing dynasty, 7–8
Draft Code of 1911, 15
real estate development, 164 Republic of China, 5, 20, 21, 42, 89,
128, 131, 132, 193, 196, 261, 270, 271, 299
requisition of property, 98, 99, 144, 149–50, 163, 150, 234
distinction from expropriation, 149 right of claim, 35
right of defence, 36–37 right of dominion, 34–35 rights of formation, 35–36 rights of personal identity, 34
rights of personality, 34, 48–50 general, 49
special, 49–50; portrait right, 50; right to a name, 49–50; right to a reputation, 50
Road Traffic Safety Law, 271, 273, 278,
285, 308
Roman law, 1, 2, 9, 10, 13
security
in Property Rights Law, 92, 174 See also guarantee
socialist public property, 98 Soviet Union, 270
special law, 12
stale claim, 80. See also limitation of actions: definition
State Compensation Council, 22, 31, 64, 172, 174
State Compensation Law, 271 state ownership (definition under
Constitutional Law), 96 statutory law, 9 substantive law, 12
Sun, X Z, 91 Sun Yat-sen, 111
Sunshine Department Store. See Luo Daxing (case study)
Supreme People’s Court, 22, 31, 196, 270, 271
Interpretation on the Contract Law (I), 237–38, 240, 241
Interpretation on the Contract Law (II), 224, 25, 240
Interpretation on Some Question Relating to Contract Law of the People’s Republic of China, 196
Opinions on Some Issues Regarding Implementation of the General Principles of Civil Law, 271, 274–75
Interpretation of the Supreme People’s Court on Some Issues Regarding Establishment of Liability and Compensation for Mental Distress Arising from Torts, 271
things, 57
critical and non–critical components of, 56
definition, 55–56 differences with fruits, 56–57
See also civil objects; civil subjects: things
Three Principles of the People, 111 tort
definition, 270 relationship, 273
tort cases: causation, 289–91, 296; elements, 287–91; fact of damage, 288–89, 296; fault, 291, 296; illegitimacy, 287–88, 296
See also burden of proof tort liability
constructive fault liability principle, 278–83
establishing viability, 273–87 exemption and mitigation, 306–15 fault liability principle, 276–78 force majeure. See force majeure joint, 296–99
non-fault liability principle, 283–87 principle of fair allocation of liability,
274–76
Index 333
separate, 299–300 several, 300–301
wrongful act of a third party, 308–9 Tort Liability Law, 30, 270, 275
Tort Liability Law Regime constructive fault liability principle,
278
scope of rights, 272 structure, 272–73 traffic safety, 278
tort remedy, 301–6
claim for compensation, 302–3
‘three specifics’, 91
Trade Law, 271
United Nations Commission on International Trade Law (UNCITRAL), 195
United Nations Convention on Contracts for the International Sale of Goods (CISG), 195
Urban Real Estate Administration Law of 1994, 103
usufructory rights
farms: land use rights, 169–72, 174; residence use rights, 172–74
in Property Rights Law, 92, 162–74; by assignment, 166; by allocation, 166–67; for construction purposes, 164–65; general rules, 163; land use rights, 164–65; main features, 164–65; methods of creation, 165; renewal, 167–69; tenure of land use rights, 167
utilization of property, 93, 103
Wang Yiqiang, 128–29
Wang Xiaoliang, 130
Wang Zhaoguo, 93–95
‘Unlike the heavily theoretical approach adopted in many other textbooks on this subject, Dr Zhang’s insightful business-oriented treatment of the Chinese civil law will be a source of delight for business people, students and teachers alike. Well structured, accessible and informative, this is a much needed text for a large and wide audience.’
— Walter Lee, Gallant Y T Ho & Co, solicitors
‘This lucid, systematic and comprehensive guide is an excellent primer for those who wish to acquire an understanding of Chinese civil law for business purposes. The many examples throughout its chapters serve as concrete case studies of the application of business law in contemporary China.’
— Lusina Ho, The University of Hong Kong
This book offers clear and comprehensive coverage of civil law in China as it pertains to business. It takes a practical approach and is heavy on examples that are based on actual legal cases that have occurred in China. Using these examples, the author illustrates how civil law plays out in real-life situations.
The first two chapters describe the development and general principles of civil law in China, and this is followed by chapters on property rights law, the law of contract and tort liability law. China does not yet have a single civil code, and its civil law regime is made up of a complicated patchwork and hierarchy of laws and statutes. This book systematically gathers the relevant articles from these diverse sources under its chapter topics, explaining any differences among applicable laws and pointing out which take precedent.
The book offers fresh translations of the relevant legal texts. This should be a welcome addition to the field as there are few official English translations of these laws, and the unofficial ones vary greatly. The author provides explanations that make these sometimes difficult texts easily accessible.
Business people, students and scholars will all benefit greatly from this book. Readers will be repaid with an understanding of civil law that will make them more adept in any
consideration of business in China and in any business dealing there. They will also gain a fuller picture of China’s economic systems (particularly its property system), the rationale behind these systems, and the policy orientations that will steer their future development.