Opinions of the Supreme People's Court on Several Issues concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China (For Trial Implementation)
(Deliberated and Adopted at the Judicial Committee of the Supreme People's Court on January 26, 1988)
The General Principles of the Civil Law of the People's Republic of China (hereinafter referred to as the General Principles of the Civil Law) came into force as of the date of January 1st, 1987. We hereby put forward the following opinions on the issues encountered in the implementation of the General Principles of the Civil Law:
I. Citizens
1. On Issues concerning the Capacity for Civil Rights and Capacity for Civil Conducts
(1) A citizen's capacity for civil rights shall begin from his birth. The time of birth shall be subject to proof by his household register; if he has no proof of household register, the birth certificate issued by the hospital in which he was born shall apply. If there is no hospital certificate, other relevant certificate shall be referred to for determination.
(2) A citizen who has reached the age of 16 but not 18 and who can earn income through his own labor and is able to maintain the ordinary living of the local masses, he may be regarded as a person with full capacity for civil conduct with the main source of income from his own labor.
(3) Whether any civil activity conducted by a minor aged 10 or older is appropriate to his age and intellect or not may be determined from such aspects as the degree of connection of the conduct with his own life, whether the minor himself can understand such conduct as to his intellect and foresee the consequence of the corresponding conduct, and the amount of objects of the conduct.
(4) The determination of whether any civil activity conducted by any mentally ill person who is unable to recognize his own conduct is appropriate to his mental health may be made from such aspects as the degree of connection of the conduct with his own life, whether he himself can understand such conduct as to his mental health and foresee the consequence of the corresponding conduct, and the amount of objects of the conduct.
(5) A mentally ill person (including an imbecile) may be determined as a person who cannot identify his own conduct if he has no judgment ability and self-protection ability and does not know the consequences of his conduct; if he lacks judgment ability and self-protection ability for more complicated things or greater conducts, and cannot foresee the consequence of his conduct, he may be determined as a person who is unable to fully recognize his own conduct.
(6) In case any person with no capacity for civil conduct or with limited capacity for civil conduct accepts rewards, donations, or remunerations, no other person may claim the invalidity of the above-mentioned conducts by the reason that the person has no capacity for civil conduct or with limited capacity for civil conduct.
(7) Whether a party suffers from psychosis, the people's court shall identify according to the judicial psychiatry or determine by referring to the diagnosis and identification of the hospital. Under the condition that there is no condition for the diagnosis and identification, it may also determine it by referring to the recognized state of mental health of the party, but shall be within the limit that the interested parties have no objection.
(8) Where any party or his interested party proposes that one party suffers from the psychosis (including dementia), and the people's court believes it necessary to make a determination, it shall make judgment on whether the parties have the capacity for civil conducts in accordance with the special procedures as prescribed by the Civil Procedure Law (for Trial Implementation).
Trials shall be conducted in accordance with the special procedures as prescribed in the Civil Procedure Law (for Trial Implementation) for determining whether a mentally ill person (including an imbecile) is a person with limited capacity for civil behavior.
(9) The place where a citizen lives for over one year consecutively after leaving the domicile is the habitual residence, excluding the case when the citizen lives in the hospital for medical treatment.
Before a citizen moves to another place after moving out of the place where his residence is registered and has no habitual residence, the place where his residence is registered shall still be the domicile.
2. On Guardianship Issues
(10) The duty of guardianship of a guardian shall include: protect the personal health of his wards, take care of the life of the wards, manage and protect the property of his wards, and act as the agent of his wards to conduct civil activities, take charge of and educate on the wards, act as agent of his ward to file litigation in case the legal rights and interests of his ward is infringed upon or the ward has any dispute with any other person.
(11) The guardianship ability of a guardian shall be determined according to such factors as the physical health and economic conditions of the wards, and the connection between the guardian and his ward in life, etc..
(12) The close relatives as prescribed in the General Principles of the Civil Law shall include: spouse, parents, children, brothers and sisters, paternal or maternal grandparent, grandchildren, and maternal grandchildren.
(13) The provisions of Article 16 of the General Principles of Civil Law shall be applied for the determination of guardians for minors who suffer from mental illness.
(14) When designating guardians, the people's court may regard the items (1) (2) and (3) of paragraph 2 of Article 16 of the General Principles of the Civil Law and the items (1) (2) (3) (4) and (5) of paragraph 1 of Article 17 as the sequence for designating guardians. In case the persons who has the qualification of guardianship in the first sequence have no guardian capacity or is bad to the wards, the people's court may, in light of the principle of favoring the wards, determine the guardians by choosing the best one in the persons who have the qualification of guardianship in the second sequence. If the ward has identification ability, his opinions shall be solicited according to the circumstances.
A guardian may be one person or may be several persons in the same one order.
(15) In case the persons who have the qualification of guardianship determine the guardians by agreement, the guardian who is determined by agreement shall undertake guardianship liabilities to the wards.
(16) In case any dispute arises over the acting of guardians, the relevant organizations shall make designation in accordance with the provisions of paragraph 3, Article 16 or paragraph 2, Article 17 of the General Principles of the Civil Law. If anyone lodges a lawsuit to the people's court without designation, the people's court shall reject it.
(17) In case the relevant organization designates guardians in light of the provisions of the General Principles of the Civil Law, if the designated person is notified in writing or orally, the designation shall be deemed as valid. If the designated person is dissatisfied with the designation, he shall lodge a complaint to the people's court within 30 days from the morrow after receiving the notice. If he files a suit beyond the time limit, it shall be dealt with as the alteration of guardianship relation.
(18) A guardian shall not be altered without permission after being designated. If anyone alters the guardian without permission, the originally designated guardian and the guardian being altered shall undertake guardianship liabilities.
(19) In case the designated person is dissatisfied with the designation and files a lawsuit, the people's court shall make judgment on keeping or withdrawing the designated guardian according to the provisions of Article 14 of the present Opinions. If the judgment withdraws the original designation, another guardian may be designated at the same time. The trial of such cases shall be carried out by applying the special procedures as prescribed in Civil Procedure Law (for Trial Implementation) by analogy.
The guardianship liability before the people's court makes judgment shall be borne by the person who has the guardianship qualification in light of the sequence of designated guardians.
(20) In case a guardian fails to perform guardianship duties or infringes the legal rights and interests of the wards, and other person or entity that has guardianship qualification files a complaint to the people's court in accordance with the provisions of Articles 16 and 17 of the General Principles of the Civil Law to require the guardian to undertake civil liabilities, the case shall be tried in light of common procedures; if the above-mentioned person or entity pleads altering the guardianship relations, the case shall be tried in light of special procedures; if the party requires both undertake civil liability and alter guardianship relation, the case shall be tried separately.
(21) After a spouse is divorced, the party living together with the children has no right to cancel the guardianship right of the other party to the children, but excluding the circumstances that the party that does not live together with the children has criminal acts, abusing acts to the children or is obviously bad to the children, and the people's court believes the guardianship may be cancelled.
(22) A guardian may entrust part or all the guardianship duties to others. In case it is necessary to undertake civil liabilities due to the tortious acts of the ward, the liabilities shall be borne by the guardian, unless there are different stipulations; if the entrusted person really has fault, he shall undertake several and joint liabilities.
(23) Where after one party of a spouse dies, the other party sends the child to any other person for adoption, if the adoption has no bad effect to the healthy growth of the child, and legal adoption formalities have been gone through, the adoption relation shall be deemed as valid; the other person that has the guardianship qualification shall not claim the invalidation of the adoption relation on the ground that he has not agreed to the adoption.
3. On Issues concerning the Declaration of Missing Persons and Death
(24) The interested party who applies for declaration of missing persons shall include: the spouse, parents, children, brothers and sisters, paternal grandparents, maternal grandparents, grandchildren, maternal grandchildren of the person being declared missing, and other persons who have civil right and obligation relations with the person applied for.
(25) The sequence of the interested party who may apply for declaration of death shall be:
a. Spouse;
b. Parents, children;
c. Brothers and sisters, paternal grandparents, maternal grandparents, grandchildren, and maternal grandchildren; and
d. Other person having the connection of civil rights and obligations.
The application for revocation of the declaration of death shall not be restricted by the above-mentioned order.
(26) The "whereabouts is unknown" shall refer to the status that a citizen leaves his final domicile and has no message. In case a citizen lives in Taiwan or abroad and is unable to be contacted through ordinary communications, he shall not be declared dead on the ground that his whereabouts is unknown.
(27) If a person's whereabouts becomes unknown during a war, the provisions of item (1) of paragraph 1, Article 23 of the General Principles of the Civil Law shall be applicable to the period for applying for declaration of death.
(28) The computation of the time when a citizen's whereabouts becomes unknown as prescribed in item (1) of Article 20, and item (1), paragraph 1 of Article 23 shall begin from the morrow when the citizen's message disappears.
Cases concerning the declaration of a missing person shall be subject to the jurisdiction of the grassroots people's court at the domicile of the person being declared missing. If the domicile is not the same as the residence, it shall be ruled by the grassroots people's court in his final residence.
(29) The declaration of a missing person is not the necessary procedure for declaration of his death. The interested party may directly apply for declaration of death without applying for declaration of missing. But if the interested party only applies for declaration of missing, the people's court shall declare person the missing; if in an interested relation of the same sequence, someone applies for declaration of death, someone disagrees with the declaration of death, the people's court shall declare death.
(30) In case the people's court designates a custodian for the property of the missing person, the designation shall be made in light of the principle of being conducive to the protection of the property of the missing person. In case there are no custodians as prescribed in Article 21 of the General Principles of the Civil Law or they are unable to act as custodians, or are not appropriate for acting as custodians, the people's court may designate citizens or the relevant organizations to act as custodian for the property of the missing person.
In case a person without capacity for civil conduct or with limited capacity for civil conduct and whose whereabouts is unknown, his guardian shall be the custodian for his property.
(31) "Other expenses" as mentioned in paragraph 2, Article 21 of the General Principles of the Civil Law shall include: estovers, maintenance fees, fostering fees, and overheads needed for putting the property in custody and other necessary fees.
(32) In case the custodian for the property of a missing person refuses to pay the tax money, debts and other expenses owed by the missing person, and the creditor thereby files a lawsuit, the people's court shall list the custodian as the defendant.
In case the custodian of a missing person requests the debtor of the missing person to repay the debts, he may file a lawsuit as plaintiff.
(33) In case a debtor's whereabouts is unknown, but he is not declared missing, and the creditor files a lawsuit requiring him repay the debts, the people's court may make a default judgment after making summons through public notice or handle it as suspension of litigation.
(34) The people's court shall hear a case of declaration of missing person by analogy to the special procedures as prescribed in the Civil Procedure Law (for Trial Implementation).
The people's court shall find out the property of the person being declared missing when hearing the case of declaration of missing person, and designate a temporary custodian or take preservative measures in litigation, and issue a notice of finding out the person missing, the period of public notice for which shall be half a year. At the expiry of the public notice, the people's court shall make judgment on the declaration of missing person or ruling on the termination of the trial on the basis whether the fact that the missing of the person being declared missing has been confirmed. If the person is adjudicated a missing person, a property custodian shall be designated for the missing person at the same time.
(35) In case a custodian for the property of a missing person is unable to perform the custody duty, and applies for alteration of the custodian, the people's court shall make trial by analogy to the special procedures.
In case the custodian for the property of a missing person fails to perform the duty of custody or violates the property rights of a missing person, the interested party may appeal to the people's court requiring the custodian undertake civil liabilities. If he applies to the people's court for alteration of the custodian for property at the same time, the alteration litigation shall be heard separately by analogy to the special procedures.
(36) For a person that is declared dead, the date of adjudication of the judgment shall be the date for his death. The judgment shall, in addition to being issued to the applicant, also be announced at the resident place of the person declared dead and the locality of the people's court.
In case the time for declaration of death and that of the natural death is inconsistent with each other, the legal effect arising from the declaration of death shall remain effective, but if the civil legal conduct implemented before natural death conflicts with the legal consequence arising from declaration of death, the civil legal conduct implemented shall prevail.
(37) The marital relationship of a person being declared dead with his/her spouse shall annihilate from the date of declaration of death. If after the declaration of death is revoked by the people's court, and his/her spouse has not remarried, the husband and wife relationship shall automatically resume from the date of withdrawing the death declaration; if his/her spouse is divorced after having remarried or his/her spouse's spouse dies after having remarried, the husband and wife relationship shall not resume automatically.
(38) Where a person's child is adopted by another person during the period when he is being declared dead, if he claims for invalidation of the adoption relations only by the reason that he does not agree with the adoption after the death declaration is revoked, his claim shall not be permitted, unless the adopter and the adoptee both agree.
(39) If an interested party disguises facts and causes other person's being declared dead, and he therefore obtains its property, he shall, apart from returning the protoplast and the interests, make compensation on the losses he causes.
(40) In case a person asks for returning his property after the death declaration is revoked, the third party may not return the original thing if he obtained it legally. But any citizen or organization that has obtained the original thing according to the inherit law, the original thing shall be returned or proper compensation shall be granted.
4. Issues on Individual Business, Rural Household Engaged in Contracted Business and Individual Partnership
(41) For an individual business that has its own shop name, the litigant shall be the householder (owner) registered in the business license in a civil action, and the litigation documents shall indicate that he is the householder of a business.
42. In case an individual business applies for registration in the name of a citizen himself or a rural household engaged in contracted business contracted by an individual, who makes investment by jointly owned property of the family, or the major part of the income is shared by the family members, its debts shall be paid off with the jointly owned property of the family.
(43) During the existence of a husband and wife relationship, if either party engages in individual business operation or contracted business and the income is jointly owned by the spouses, the debts shall be repaid with the jointly owned property of the spouses.
(44) If an individual business or rural household engaged in contracted business undertakes liabilities for its debts by using the jointly owned property of the family, the necessities for life and necessary production tools shall be kept for his family members.
(45) An individual partnership with a shop name shall have the legally approved and registered shop name as the litigant in civil action, and the person in-charge of the partnership shall be the litigation representative. The litigation act of the responsible person of the partnership shall have legal effect to all the partners.
For an individual partnership without a shop name, the partners shall be the common litigants. In case there are numerous partners, a litigation representative shall be elected to take part in the litigation, and the litigation act of the litigation representative shall have legal effect to all the partners. Written formalities shall be handled for the election of a litigation representative.
(46) In case a citizen provides capital or in-kinds according to the agreement, and is allowed to take part in the distribution of the surplus of the partnership, but not to take part in the business operation and work of the partnership, or if he provides technical labor service and does not provides capital or in-kinds, but is allowed to take part in the distribution of the surplus, he shall be regarded as a partner.
(47) All the partners shall be jointly and severally liable for the amount of loss arising from the business operation of the partnership to outsiders; while among themselves, the partners shall undertake liability for debts according to the proportion as stipulated in the agreement or the proportion of contributions; if the proportion of debts undertaken or no proportion of contribution is stipulated in the agreement, they may undertake liabilities according to the stipulations or the actual surplus distribution proportion. But any partner who has faults for the loss of business operation of the partnership shall undertake liabilities to the extent of his faults.
(48) Any partner who only provides technical labor services but does not provide capital or in-kinds shall take joint and several liabilities for the amount of loss of the business operation of the partnership to outsiders, and shall undertake liabilities according to the proportion of debts as stipulated in the agreement among themselves or in light of the proportion of surplus distribution proportion as stipulated or the surplus distribution proportion actually effected; if there is no surplus distribution proportion, they shall undertake liability in light of the average investment proportion of other partners.
(49) In case any individual partnership or individual business is falsely registered as a collective ownership enterprise by the administrative department for industry and commerce, but is in fact an individual partnership or individual business, it shall be treated as individual partnership or individual business.
(50) If the parties have no written partnership agreement between them and are not approved for registration by the administrative department for industry and commerce, but have other conditions for partnership, and meanwhile have been proved by two or more persons without any relation of interests to have entered into an oral partnership agreement, the people's court may determine that they are in partnership relations.
(51) In case any partner joins a partnership during the process of business operation of the partnership, and if there are stipulations about it in the written agreement, it shall be handled according to the agreement; if there are no stipulations in the written agreement, it shall win the consent of all the partners, and if it fails to win the consent of all the partners, his joining the partnership shall be deemed as invalid.
(52) In case a partner withdraws from a partnership, and if there are stipulations in the written agreement, it shall be handled according to the agreement; if there are no stipulations in the written agreement, the withdrawal shall be permitted in principle. But if other partners suffer losses due to the withdrawal, his compensation liability for them shall be determined by considering the causes, reasons for the withdrawal and the faults of the two parties, and other relevant conditions.
(53) In case losses are incurred during the business operation of a partnership, and any partner who fails to undertake the debts of the partnership as stipulated or fails to properly share the debts, the withdrawing partner shall undertake liabilities for paying off the debts of the former partnership; if the withdrawing partner has undertaken the debts of the partnership, he shall still be jointly and severally liable for all the debts during his participation in the partnership.
(54) The partnership property divided when any partner withdraws from the partnership shall include the property invested in the partnership when the partner entered into the partnership and the accumulated property during the existing period of the partnership, as well as the creditor's rights and debts during the exiting period of the partnership. The original things contributed when the partner entered into the partnership shall, as a general rule, be returned when he withdraws from the partnership; if it is difficult to check and return them once for all, they shall be checked and returned by batches and by stages; if it is really difficult to return the original things, they shall be converted into money.
(55) When a partnership terminates, the partnership property shall be handled according to the written agreement, if any; in case there is no written agreement, nor can the partners reach an agreement through negotiation, it shall be properly handled by taking the opinions of the majority partners into consideration, if the partners contribute the same amount of capital; if the amount of capital contributed by the partners is not the identical, the property shall be handled in light of the opinions of the partners whose amount of contribution accounts for a larger portion of the total partnership contributions, but the interests of other partners shall also be protected.
(56) In case the partners collude with each other to evade the debts of the partnership, they shall, in addition to being ordered to undertake the liability for paying off the debts, be punished in accordance with the provisions of paragraph 3 of Article 134 of the General Principles of the Civil Law.
(57) The "liabilities for paying off debts with the partners' property in proportion to their respective contributions to the investment" as prescribed in paragraph 1, Article 35 of the General Principles of the Civil Law shall mean that if a partner contributes with the individual property, he shall undertake liabilities with his own property; if a partner makes contributions by using the common property of the his family, he shall undertake liabilities with the common property of his family; if a partner makes contributions with individual property, and the surplus distribution income of the partnership is used for the living of the family members, he shall undertake liabilities with his individual property first, and then undertake liabilities with the common property of the family for the insufficient part.
II. Legal Person
(58) The legal representative of an enterprise legal person and other personnel who engage in business activities in the name of the legal person and cause economic damages to others, the enterprise legal person shall undertake civil legal liabilities.
(59) In case an enterprise legal person is dissolved or is revoked, its competent department shall organize a liquidation group to make liquidation. If the enterprise legal person is adjudicated bankrupt, the people's court shall organize the relevant organs and the relevant personnel to form a liquidation organization to make liquidation.
(60) The liquidation organization shall be an organization established according to law for the purpose of liquidating the creditor's rights and debts of the enterprise legal person. It shall be responsible for keeping, cleaning up, evaluating, handling and paying off the property of the enterprise legal person that is terminated.
For civil actions concerning the creditor's rights and debts of an enterprise legal person that is terminated, the litigation organization may take part in the legal action in its own name.
Where a liquidation organization is established for the purpose of evading the liabilities for debts, the civil conducts it carries out shall be invalid.
(61) In case any enterprise legal person who is found out by the people's court during the hearing of a case to be in any of the six circumstances as enumerated in Article 49 of the General Principles of the Civil Law, the people's court shall require the enterprise legal person to undertake liabilities, and may also give punishment to the legal representative of the enterprise by directly imposing upon him a fine in accordance with the provisions of Article 49 and paragraph 3 of Article 134; if it is necessary to give administrative punishment, the people's court may propose judicial suggestions to the relevant department, who shall then determine to handle it; if a crime is committed and it is necessary to subject it to criminal liabilities according to law, it shall transfer it to the public security organs and the procuratorial organizations according to law.
(62) During the process of hearing cases, the people's court shall be subject to the authorization of the chief justice when taking such punishment measures as imposing a fine or detention on the enterprise legal person or other person according to law, and make an instrument of intermediate order for civil action separately. If the person punished is dissatisfied with the decision, he may apply for reconsideration to the superior people's court for once within 10 days from the morrow of receiving the instrument of intermediate order. The decision shall not be executed during the period of reconsideration.
(64) Where a party provides land use right as the condition for joint management, it shall undertake liabilities for the debts of jointly operated enterprise in light of the stipulations of the written agreement; if there are no stipulations in the written agreement, it may undertake liabilities in proportion to the contributions to the investment or the surplus distribution.
III. Civil Juristic Acts and Agency
(65) In case a party performs civil conduct by way of record or video tape and other audio-visual materials, if such civil conduct is proved to comply with the provisions of Article 55 of the General Principles of the Civil Law by two or more persons without any relations of interests as witnesses or by other proofs, it shall be deemed as valid.
(66) Where one party claims for civil rights against any other party, and the other party does not express his opinions clearly in oral or written language, but his act shows that he has accepted the request, it shall be determined as having tacitly accepted. The implication of nonfeasance may not be regarded as declaration of will until there are provisions of laws or stipulations of both parties.
(67) In case a civil conduct of an intermittent mentally ill person can be proved to have been made during the time when he is suffering from the disease, it shall be deemed as invalid.
If a civil conduct is made by an actor who is in a state of dottiness, it shall be deemed as invalid.
(68) In case any party purposely conveys any false information to the other party, or purposely disguises any fact so as to induce the other party into making any false declaration of will, such act shall be determined as a fraudulent act.
(69) In case anyone forces any other party to make a declaration of will in breach of the other party's true will by way of threatening to cause damages to the life, health, honor, reputation, or property of any citizen or his relatives or friends or to cause damages to the credit, repute and property of any legal person, it shall be determined as duress.
(70) In case any party forces any other party to make unreal declaration of will by exploitation of the jeopardy position of the other party to seek for wrongful interests and seriously damage the interests of the other party, it shall be deemed as exploitation of unfavorable position of other person.
(71) In case an actor performs his conducts on the basis of false understanding of the nature of the conduct, the opposite party, the variety, quality, specification and amount of the objects, etc., which leads to the consequence of the conduct going against his own will and results in considerably serious damages, it shall be deemed as significant misconception.
(72) In case any party makes use of his own advantages or takes advantage of the other party's lack of experiences to have the rights and obligations of the two parties obviously violate the principle of fairness and making compensation for equal value£¬it shall be determined as obviously unfair.
(73) In case any party appeals to make alteration on the civil conduct of significant misconception or obvious unfairness, the people's court shall make the alteration; if the party appeals for revocation of such acts, the people's court may make the alteration or revocation according to the circumstances.
In case any party appeals for alteration or revocation of any civil conduct that may be altered or revoked after one year since such acts are performed, the people's court shall not give protection.
(74) The "property obtained by the two parties" as mentioned in paragraph 2, Article 61 of the General Principles of the Civil Law shall include the properties that have been obtained by the two parties or as they have both agreed.
(75) For a civil juristic act subject to a condition, if the condition attached violates the legal provisions or may not happen, such civil juristic act shall be deemed as invalid.
(76) A civil juristic act subject to a stipulation of time limit shall take effect or rescind at the time when the time attached arrives.
(77) Where the expression of will is conveyed gratuitously by a third party, and the third party falsely conveys or fails to convey the expression of will due to negligence, which causes damages to others, the person of declaration of will may be held liable for compensation as a general rule, unless it is otherwise specified differently by laws or stipulated differently by both parties.
(78) All those civil acts that must be performed by a person himself according to law or the stipulations of both parties, and if the person fails to perform it by himself, it shall be deemed as invalid.
(79) Where several entrusted agents exercise power of attorney together, if one or several of them fail to negotiate with other entrusted agents, and the acts performed infringe upon the interests of the principal, the entrusted agent who performs the act shall undertake civil liabilities.
In case there are several principals, one or several of them agree to rescind the agency relation without the consent of other principals, which thereby causes damages, the principal who proposes to rescind the agency relationship shall undertake liabilities.
(80) In case an entrusted agent cannot handle the entrusted matters by himself due to sudden illness, interruption of communications and other special reasons, and he cannot get in touch with the principal, but if he fails to transfer the agency to other person in time, he will incur damages to the interests of the principal or enlarge the damages, such situations shall fall within the scope of "emergencies" as prescribed in Article 68 of the General Principles of the Civil Law.
(81) In case an entrusted agent transfers the agency to another person, they shall go through formalities for transfer of the agency in accordance with the conditions as prescribed in Article 65 of the General Principles of the Civil Law. In case the entrusted agent fails to transfer the agency clearly and leads to damages to the third person, this third party may directly request the principal to compensate for the damages; after undertaking civil liabilities, the principal may request the entrusted agent to compensate for the losses, if the re-entrusted agent has faults, he shall take joint and several liabilities.
(82) In case a principal is in any of the following circumstances after death, the acts performed by the agent he entrusted shall be regarded as effective:
a. The agent does not know the principal has died;
b. The heirs of the principal accept the acts;
c. The principal and the agent stipulate that the power of attorney shall terminate after the matter entrusted is completed; or
d. The conduct that is made before the death of the principal and completed continuously in favor of the heirs of the principal after he dies.
(83) In case an agent and principal are jointly and severally liable for the civil juristic acts they perform, they shall be listed as the common litigants in civil procedures.
IV. Civil Rights
1. On Issues concerning Property Ownership and Property Right Relating to the Property Ownership
(84) In case a property has been delivered, but the parties stipulate the attached conditions for the transfer of property right, the property ownership may not be transferred until the attached conditions have been met.
(85) If one party backs out after the property ownership has been legally transferred, he shall not be supported. If the property ownership has not been transferred according to the original agreement, one party backs out and has no justifiable reasons, and the agreement can be performed, it shall continue to be performed; if the agreement cannot be performed, which results in losses to the other party, he shall undertake compensation liabilities.
(86) In case a non-property owner adds appurtenance to the property of any other person that he uses, and if the property owner agrees to such adding and has stipulations on how to deal with the appurtenance, the stipulations shall be followed; if there is no stipulations and they cannot make an agreement through negotiation, the property owner may order to dismantle it if it can be dismantled; if it cannot be dismantled, it may be returned to the property owner after being converted into money; if it results in any loss of the property owner, the non-property owner shall undertake compensation liabilities.
(87) For a property that has appurtenance, the appurtenance shall be transferred with the property ownership. Unless it is otherwise stipulated differently by the parties and no law is violated, the stipulations shall be followed.
(88) For a jointly owned property, if some of the co-owners claim for several co-ownership, but other co-owners claim for joint ownership, if the property cannot be proved to be severally co-owned, it shall be regarded as jointly owned.
(89) The co-owners shall have the same rights to the jointly owned property, and undertake same obligations. During the existence period of joint ownership, if some of the co-owners deal with the jointly owned property without permission, it shall be deemed as invalid. But if the third person has obtained the property onerously in goodwill, the lawful rights and interests of the third person shall be protected; and the person who has disposed the jointly owned property without permission shall compensate other co-owners for their losses.
(90) When a relation of joint ownership is terminated, the division of the jointly owned property shall be handled on the basis of the agreement, if any; if there is no agreement, the property shall be handled in light of the principle of equal shares, taking into consideration the contributions of the co-owners to the jointly owned property, and properly taking care of the actual needs for production and living of the co-owners. The division of the property jointly owned by the spouses shall be handled in light of the relevant provisions of the Marriage Law.
(91) If the jointly owned property is a special object, which cannot be divided or the division on it will devaluate it, it may be handled by converting it into money.
(92) After a jointly owned property has been divided, and one or more of the original co-owners sell the property he/they shared, if the property sold and the property shared by other original co-owners are the same as a whole one, or used as a matching part, and other original co-owners claim for preferential purchasing right, their claim shall be supported.
(93) If any citizen or legal person who can prove that any buried or concealed object being dredged up or discovered is owned by him/it, and it may be returned to him/it according to the laws and policies in effect, his/its such rights shall be protected.
(94) In case any lost-and-found object is destroyed or damaged, and the person who finds such object has no intent, he shall not undertake civil juristic liabilities. If the person who finds such object appropriates it and refuses to return it to the owner, which results in litigation, such litigation shall be handled in light of a litigation of torts.
(95) The right and obligation of citizens and collectives to a contract for management of forests, land, mountains, grasslands, unreclaimed land, beaches, water surfaces and other natural resources under collective ownership or of state owned land under collective use shall be handled in light of the stipulations of the contract. If any contractor subcontracts or transfers the rights and obligations without the consent of the contract issuing party, it shall be deemed as invalid.
(96) Disputes over the ownership or use right of such natural resources as the land, mountains, forests, grassland, unreclaimed land, beaches and water surfaces, shall be subject to the handling of the relevant administrative departments. If any party is dissatisfied with the administrative punishment, he/it may file a lawsuit to the people's court in accordance with the relevant laws and regulations. If a lawsuit is filed due to disputes of torts, the people's court may accept it directly.
(97) In case any of the neighboring parties temporarily occupies the land used by the other party, and if the occupying party fails to use the land according to the scope, usage and term as stipulated by both parties, he/it shall be ordered to clear off the scene, eliminate the obstruction, restore the land to its original condition, and compensate for the damages.
(98) In case any party blocks up or engrosses natural water without permission, which influences the ordinary production and life of any other party, the other party shall be entitled to request him/it to eliminate the obstruction; if it causes any loss to the other party, he/it shall compensate for the damages.
(99) In case any of the neighboring parties shall use the land of the other party for the purpose of drainage, he/it shall be allowed; but he/it shall use within the necessary limits and take proper safeguard measures to make drainage, in case there are still damages, the beneficiary shall give reasonable compensation.
In case any neighboring party may take other reasonable measures to make drainage but fails to do so, and makes drainage to the land of the other party, which destroys or may destroy the property of other party, and the other party requests the party causing the damage to stop the tortious act, eliminate the danger, restore the property to its original conditions, and compensate for the damages, the people's court shall give support.
(100) In case any party must pass through the land used by his neighbor, it shall be permitted; if the neighbor therefore suffers from losses, he shall be given appropriate compensation.
(101) For a passageway formed in history through which anyone must pass within the scope of the building owned or used by one party, the owner or user shall not block it. In case other people request to eliminate the obstruction or restore the passageway to its original conditions because the block has influenced his production or life, the people's court shall give support. In case it is possible to open another passageway, it may be permitted.
(102) In handling disputes over water dripping of neighboring house, if any party who has faults causes damages to the other party, he shall be ordered to eliminate the obstruction and compensate for the damages.
(103) In case a neighboring party digs ditches, pools, or cellars in his own land or the roots and branches of bamboos and trees he plants stretches, which endangers the safety and normal use of the construction of the other party, he shall be ordered to eliminate the danger, restore the land to its original conditions or compensate for the damages according to the circumstances.
2. On Creditor's Rights
(104) In case a creditor refuses the performance of obligations by a debtor without justifiable reasons, the debtor's drawing of the object of performance to the relevant department shall be regarded as the debt has paid. The fees for the drawing shall be borne by the creditor. During the period of drawing, the income incurred from the property shall be owned by the creditor, and the risks and liabilities shall be borne by the creditor.
(105) According to the provisions of item (1), paragraph 2 of Article 88 of the General Principles of the Civil Law, if quality requirements are unclear in the contract, and the parties fails to reach an agreement on it, while there are no national quality standards, the ministerial standards or special standards shall be followed; if there are no ministerial standards or special standards, the approved enterprise standards shall be followed; if there are no approved enterprise standards, other approved enterprise quality standards for the similar products of the same industry in the place of the origin of the object shall be followed.
(106) A guarantor shall be a citizen, enterprise legal person or any other economic organization that has compensatory capacity. Even if a guarantor has no full compensatory capacity, he shall still undertake guarantee liability with his own property.
No state organ may act as a guarantor.
(107) In case any branch of an enterprise legal person with no legal person status signs a guaranty contract in its own name, such a contract shall be determined as invalid. But the property liabilities arising therefrom shall be borne by the branch itself if it has solvency; if the branch has no solvency, it shall be borne by the enterprise legal person.
(108) In case a guarantor ensures to the creditor that he will perform his obligations to the debtor, he shall enter into a written guaranty contract with the creditor to determine his scope and term of guaranty to the main obligation. If the guarantor does not enter into a written guaranty contract in a separate way, but clarifies the scope and term of guaranty of the guarantor in the main contract, which are signed and sealed by the guarantor, the guaranty contract shall be regarded as established. In case an oral guaranty agreement between citizens is approved by two or more persons with no relation of interests, the guaranty contract may also be deemed as established, unless there are otherwise different provisions by law.
In case the scope of guaranty is unclear, the guarantor shall be inferred as undertaking guarantee liabilities to all the main obligations.
(109) The scope of guaranty of a guarantor may be reduced with the main obligations within the guaranty period. A guarantor shall not undertake guaranty liability for newly added debts if the guarantor does not agree to make guaranty on such debts.
(110) In case there are two or more guarantors, they shall undertake guaranty liabilities jointly and severally. Unless the guarantor otherwise stipulates with the creditor that he shall undertake guaranty liability by shares.
(111) Where a secured economic contract is confirmed invalid, if the pledgee shall return the property or compensate for damages, the guarantor shall still undertake liabilities jointly and severally unless there are otherwise special stipulations.
(112) Where a debtor or a third person offers a pledge to the creditor, a written contract shall be concluded or it shall be specified in the original documents of creditor's rights. If there is no written contract, but there are other evidences proving the pledge or its title of certificate has been handed over to the mortgagee, the mortgage relations shall be deemed as established.
(113) In case anyone offers the property to which he has no ownership or management right as a pledge, the mortgage shall be deemed as invalid.
In case anyone offers a property whose circulation is restricted by law as a pledge, it shall be purchased by the relevant department when paying off debts, and the mortgagee may be accorded priority in getting compensation from the purchasing price.
(114) In case any pledge is destroyed or damaged in the custody of a mortgagee, the mortgagee shall then undertake civil juristic liabilities if he has faults.
In case a pledge is destroyed or damaged in a mortgagor's place, the mortgage relation shall be determined as existence, and the mortgagor shall be ordered to substitute the pledge for other property.
(115) In case a pledge is owned and kept by a mortgagor, the mortgagor shall not transfer the same pledge to others without the consent of the creditor during the mortgage period, or re-mortgage the part of mortgage on the value of estate under mortgage, his acts shall be deemed as invalid.
Where a creditor pays off debts with a pledge, if there are several mortgagees in a single pledge, the repayment shall be made according to their sequence of establishing the mortgage right.
(116) In case there are several creditors including the creditor who requests for paying off bank loans and other creditor's rights, the creditor who has the right to mortgage shall have the right to enjoy priority in being repaid, unless it is otherwise specified differently by laws and regulations.
(117) Where a creditor occupies the property of a debtor due to any contract relationship, if the debtor fails to perform his due obligations, the creditor may keep the corresponding property as security. If the debtor still does not perform his duty due after being urged, and the creditor sells the property held by him at a reasonable price according to law, and takes priority in being paid at the price of the property sold, the creditor shall be protected.
(118) If a landlord wants to sell his leased house, he shall notify the tenant three months in advance, and the tenant shall have priority to buy the house under the same conditions; if a landlord fails to sell the house according to such conditions, the tenant may claim to the people's court for declaration of the invalidity of the sale of the house.
(119) Where a tenant accepts lease of a private house in his own name for his family, if he dies during the lease period, and the co-residents of the family request for performing the former tenancy agreement, they shall be supported.
During the lease period, the house property right of a private house is transferred due to sale, donation or inheritance, the original tenancy contract shall be effective to the tenant and the new owner of the house.
In case there is no fixed lease period, and the house-owner asks for taking back the house for his own use, his request shall be permitted. Where it is possible for the tenant to move, he shall be ordered to move; if a tenant really has difficulty in moving, he shall be given a period of time to find houses or clear off some of the houses.
(120) Where during the period when a house is pawned or at the expiry of the pawn period, the parties stipulate to extend the period of pawn or increase or decrease the price of pawn, they shall be permitted. If the pawnee request the pawnor redeem the house at a price higher than the original pawn price, such a request shall not be supported in general. In case the pawn price is set by a lawfully merchantable item, it shall be converted into the retailing price of the market at the time the lawfully merchantable item is redeemed.
(121) The loan money between citizens shall be handled according to the stipulations in case the two parties have stipulated the time limit for the return; if there are no stipulations, a lender may claim for return at any time, the borrower shall return in time upon the request of the lender; if he is unable to return it for the time being, he shall be ordered to return it by stages according to actual circumstances.
(122) The interest rate of loans for production and business operation between citizens may be a little higher than the interest rate of a loan for living. In case a dispute arises from interest rate, it shall be handled in light of the principle of protecting the lawful loan relations, taking into consideration of the local reality, and being conducive to the production and stabilizing economic order.
(123) For any loan without interests between citizens, who stipulate the time limit for repayment, but the borrower fails to repay it on time, or who do not stipulate the repayment time but the borrower still fails to repay it after being urged, and if the lender requests the borrower repay the overdue interests, his request shall be supported.
(124) In case any dispute over interest rate arises between two parties of a loan, and if the stipulations are not clear and cannot be proved, the interest rate of a similar loan of the bank may be applied by analogy in the computation.
(125) For loans between citizens, if the lender calculates compound interest by putting the interests into the principal, such a loan shall not be protected; if the interests are deducted when borrowing money, the interests shall be computed on the basis of actual amount of loans.
(126) For the borrowing of in-kind, if the lender requests for returning the original thing or the in-kinds of the same amount and quality, his request shall be supported; if the in-kind is really unable to be returned, he shall pay for the original thing by converting it into money in light of or a little higher than the retailing price of the market at the time of return.
(127) In case the thing borrowed is destroyed because the borrower fails to properly manage and use it, the borrower shall undertake compensation liabilities; if the thing borrowed has defects in itself, compensation liabilities of the borrower may be reduced.
(128) The existence of a donation relationship between citizens shall be the delivery of donations. For house donations, if the transfer formalities have been gone through according to the written donation contract, the donation relationship shall be determined as in existence; if the transfer formalities fail to be handled, but the donator has handed the property right certificate over to the donee according to the written donation contract, and the donee has occupied and used the house in light of the donation contract, the donation shall be determined as valid, but the parties shall be ordered to make up the transfer formalities.
(129) In case a donator explicitly expresses to donates its property to a minor himself, the property shall be regarded as the personal property of the minor.
(130) In case a donator donates his property to others for the purpose of evading the legal obligations that he should bear, and if the interested parties claim for rights, the donation shall be determined as invalid.
(131) The returned illegal profits shall include the original thing and the fruits arising therefrom. Other interests obtained by using the illegal profits shall be taken over after deducting the labor service overheads.
(132) The keeper or serviceman as prescribed in Article 93 of the General Principles of the Civil Law may require the beneficiary to repay necessary fees, including the fees outlaid directly in the management or service activities and the actual loss suffered in such activities.
3. On Issues concerning Intellectual Property Right and Personal Right
(133) Whether a work is published or not, the author shall have copyright to it.
(134) Where two or more persons agree to create any work together, no matter how much creative production of each person has been adopted in the work, the work shall be regarded as the work created jointly by the parties.
(135) The copyright to a work with joint authorship shall be shared by all the coauthors; if each component part of the work may exist independently, the copyright to a component part shall be enjoyed by the author of the corresponding component part.
(136) After an author dies, if the property right of his copyright inherited by his heir is infringed upon within the protection time limit as prescribed by law, and the heir pleads for protection according to law, the people's court shall give support.
(137) The patent right obtained by any citizen or legal person through applying for patent right, or through inheriting, accepting donations and assignment shall be protected.
The State Patent Office shall make registration on the transfer of patent right and make public notice on it, and the patent right shall be transferred from the date when the State Patent Office makes public notice on it.
(138) The right to the exclusive use of a trademark obtained by any legal person, individual business, or individual partnership through applying for trademark registration or assignment and other ways shall be protected unless it is otherwise revoked in light of legal procedures.
The transfer of the right to the exclusive use of a trademark shall be subject to the approval of the trademark bureau of the State Administration for Industry and Commerce, and the right to the exclusive use of a trademark shall be transferred from the date of approval.
(139) In case anyone who uses any citizen's portrait to make advertisement, trademark or to decorate a shopwindow, etc. for profits without the consent of the citizen, such act shall be determined as act infringing the citizen's right to portrait.
(140) In case anyone propagates the privacy of any other person in writing or orally, or fakes acts to uglify the personality of other person overtly, or damages other person's reputation by ways of insulting and slandering, which result in a certain influence, such act shall be determined as act infringing the citizen's right of reputation.
In case anyone bespatters or slanders the reputation of a legal person in writing or orally, which results in damages to the legal person, such act shall be determined as act of infringing the right of reputation of the legal person.
(141) In case anyone embezzles or counterfeits the name or title of others and causes damages, such act shall be determined as act of infringing the right of a personal name or title.
V. Civil Liabilities
(142) In case anyone suffers from damages for the purpose of maintaining the lawful rights and interests of the state, collective or other people, under the condition that the infringer has no ability to give compensation or there is no infringer, if the victim raises a claim, the people's court may order the beneficiary to give proper compensation according to the benefit the beneficiary get and its economic status.
(143) The date for a victim's delaying of work shall be determined in accordance with his actual degree of damage and recuperation status with reference to the proof issued by the medical treatment hospital or the medicolegal expertise, etc.. The standards for compensation fees shall be computed in light of the standard of wages or actual income of the victim.
In case the victim is a household under contracted management or individual business, the standards for the computation of the fees for delaying his work may be determined by taking into consideration of the average income of the victim within a period of time. If the planting or aquatics breeding under the contracted management of the victim is of great seasonal nature, and considerably serious damages will result if it fails to be managed in time, except that the victim shall take measures to prevent the spread of the damage, the infringer may also be ruled to take measures to prevent the aggravation of the damage.
(144) The compensation for the medical treatment fees shall be based on the diagnosis certificate of the medical treatment hospital and the medicine fees and fees for living in hospital at the locality. The fees for medical treatment in another hospital without the approval of the medical affairs department may not be compensated in general; fees for buying medicine that has nothing to do with the damage or for treating other diseases shall not be compensated.
(145) For a person who undertakes nursing work upon the approval of the hospital, his subsidy for delaying work may be computed according to the actual loss of the income. And the bonus may be computed into the amount of compensation fees in general. If the person has no income of wages, the compensation standards may be the standard of wages of an ordinary casual laborer of the local area.
(146) In case anyone infringes the physical health of other person, which results in the person's loss of all or part of ability to work, he shall make compensation for the living subsidy of the person no lower than the basic living expenses of local residents in general.
(147) Where anyone infringes upon the physical health of any other person and results in the person's death or loss of ability to work, and the person who are actually supported by the victim and has no other sources of living requires the infringer pay necessary living expenses, such request shall be supported, and the amount of compensation shall be determined according to the actual circumstances.
(148) A person who instigates or assists others to perform an infringement act shall be the co-infringer, and shall undertake civil liabilities jointly and severally.
A person who instigates or assists a person without ability of civil conduct to perform infringement act shall be an infringer, and shall undertake civil liabilities.
A person who instigates or assists a person with limited ability of civil conduct to perform infringement act shall be a co-infringer, and shall undertake major civil liabilities.
(149) Where anyone who embezzles or counterfeits the name of any other person to deceive or befool others by means of letter or telephone, and causes damage to the property or reputation of others, the infringer shall undertake civil liabilities.
(150) In case the right to name, right to portrait, right to reputation, or right to honor of a citizen and the right to name, right to reputation or right to honor of a legal person is infringed upon, and the citizen or the legal person requires compensation for the losses, the people's court may determine the compensation liabilities according to the extent of faults of the infringer, the concrete circumstances, consequence or influence of an infringing act.
(151) In case anyone obtains profits by infringing upon the right to name or title, right to portrait or right to reputation or honor of others, the infringer shall, in addition to compensating the losses of the victim, have his ill-gotten gains taken over.
(152) In case any staff member of a state organ causes any damage to the lawful rights and interests of any citizen or legal person in performing his functions, the state organ shall undertake civil liabilities.
(153) Where a consumer or customer suffers from personal damage or property loss by himself or causes personal damage or property loss to any third person due to using unqualified product, the victim may require compensation to the manufacturer or seller of the product. For litigation filed due to such matters, the case shall be accepted by the people's court at the locality of the defendant or the place where the infringing act is committed.
Where a carrier or depositary is responsible for product liability, and the manufacturer or seller requests to compensate for damages, the case may be handled as a different case, or the carrier or depositary shall be listed as the third person to be handled together.
(154) In case anyone who undertakes highly dangerous work fails to take necessary safeguard and precautious measures in light of relevant provisions, which seriously imperils the safety of the person or property of others, the people's court shall order the worker to eliminate the danger upon the request of other people.
(155) In case anyone piles goods which collapses and causes damages to others, if neither party has fault, it shall be handled in light of the principle of fairness by taking the circumstances into consideration.
(156) In case anyone causes damages to any other people due to the act of rescue, if the dangerous situation is caused due to natural reasons, and the measures taken by the actor is appropriate, he shall not undertake civil liabilities. If the victim requests for compensation, he may order the beneficiary to give proper compensations.
(157) If neither party has any fault in the causing of damage, but one party suffers from damage due to carrying out activities for the benefit of the other party or the common interests of both parties, the other party or beneficiary may be ordered to give certain economic compensation.
(158) Where, after a couple is divorced, their minor child infringes upon the rights and interests of other person, the party who lives together with the child shall undertake civil liabilities; if he/she really has difficulty in undertaking civil liability independently, the party who does not live together with the child may be ordered to undertake civil liabilities.
(159) Where a person under guardianship causes any damage to any other person, if there is a specific guardian, the guardian shall undertake civil liabilities; if there is not a specific guardian, the person having ability of guardianship who ranks in the front shall undertake civil liability.
(160) Where any person without ability of civil conducts who lives in or studies in kindergarten or school or any mentally ill person who receives medical treatment in a madhouse is injured or causes damages to any other people, and if their entities have faults, these entities may be ordered to give proper compensation.
(161) In case an actor has not reached 18 years old when an infringing act occurs, and has reached 18 years during litigation, and if he is economically affordable, he shall undertake civil liabilities; if the actor is not affordable, the original guardian shall undertake civil liabilities.
In case an actor has reached 18 years old when causing damages to others, he shall undertake civil liabilities by himself; if he has no income, the person supporting him shall pay for him first; if he has real difficulty in effecting the advance payment, the people's court may rule or mediate to postpone the payment.
(162) Where it is necessary to stop a tort, remove obstructions, or eliminate danger, and other circumstances in litigation, the people's court may make ruling in advance according to the application of the parties or in light of its authority.
Where the parties undertake civil liability by way of apology in litigation, it shall be stated in the judgment.
(163) Where any illegal acts that has something to do with the present case is found in litigation and shall be punished, the provisions of paragraph 3 of Article 134 of the General Principles of the Civil Law may be applied to give admonition, order to sign a pledge of repentance, take over the property and illegal gains for conducting illegal activities, or impose a fine or detention according to law.
The taking of such punishment measures as taking over, giving fines or detention shall be subject to the approval of the president of a court with a written decision of civil sanctions made additionally. If the person being punished is dissatisfied with the decision, he may apply for reconsideration for once to the superior people's court within ten days from the morrow when the written decision is received. The decision may not be executed for the time being during reconsideration.
(164) In case a citizen is fined less than RMB 500 Yuan by applying paragraph 3 of Article 134 of the General Principles of the Civil Law, the detention shall be less than 15 days.
In case a legal representative is punished by detention according to law, the date for the detention shall be less than 15 days.
Unless specified differently by laws, the aforesaid two paragraphs shall not be applicable.
VI. Statute of Limitations
(165) Before the implementation of the General Principles of the Civil Law, if the obligee knows or should know his civil rights are infringed, the period of limitations applied by him for appealing the people's court to protect his rights after the implementation of the General Principles of Civil Law, the provisions of Article 135 and 136 of the General Principles of the Civil Law shall apply, and the statute of limitations shall be computed from January 1st , 1987.
(166)Where, before the implementation of the General Principles of the Civil Law, any civil right has been infringed upon for over 20 years, the statute of limitations applied by an obligee for appealing the people's court to protect his right after the implementation of the General Principles of Civil Law shall be two years as prescribed in Article 135 of the General Principles of the Civil Law or one year as prescribed in Article 136 respectively, and it shall be computed from January 1st , 1987.
(167) Where after the implementation of the General Principles of the Civil Law, any case that falls within the statute of limitations of two years as prescribed in Article 135 of the General Principles of the Civil Law, but the obligee does not know that his rights have been infringed upon until the 18th years to 20th year period since the infringement, or any case that falls within the statute of limitations of one year as prescribed in Article 136 of the General Principles of the Civil Law, the obligee does not know his rights have been infringed upon until after the 19th to 20th year period since the infringement, he may exercise his right of filing a litigation claim within 20 years since his rights are infringed upon; in case it exceeds 20 years, his rights shall not be protected any longer.
(168) For personal injury that is obvious, the statute of limitations for compensation shall be computed from the date when the person suffers from such injury; if the injury is not found then and there, but is diagnosed after examination to be caused by the infringement by proof, the statute of limitations shall be computed from the date when the condition of the injury is diagnosed.
(169) If an obligee cannot exercise his right of claim within the legal statute of limitations due to impersonal obstacles, he may fall within the "special circumstances" as prescribed in Article 137 of the General Principles of Civil Law.
(170) In case the state property that is not authorized to any citizen or legal person for management is infringed, it shall not be restricted by the statute of limitations.
(171) If an obligee fails to perform duties after the statute of limitations has passed, but goes back on his words by reason of exceeding statute of limitations, he shall not be supported.
(172) Where, during the last six months of the statute of limitations, any person without capacity for civil conduct or with limited capacity for civil conduct whose right is infringed upon has no legal agent, or his legal agent dies, loses agency right, or the legal agent himself loses capacity for conduct, he may be determined as incapable of exercising the right of claim due to other obstacles, the statute of limitations shall be suspended.
(173) Where a statute of limitations is interrupted because an obligee claims for rights or an obligor agrees to perform his duties, if the obligee claims for rights again in the new statute of limitations or the obligor agrees to perform his duties again, the limitations may be determined as being interrupted again.
In case an obligee claims for rights to an assurer to debts, the agent of the obligor, or the custodian of property, the statute of limitations may be determined as being interrupted.
(174) In case an obligee raises a claim for protection of civil rights to the people's mediation commission or the relevant entities, the statute of limitations is interrupted from the time when such claim is raised. If no agreement is reached after mediation and handling, the statute of limitations shall continue; if an agreement is reached after mediation and handling, but the obligor fails to perform duties in light of the time limit as stipulated in the agreement, the statute of limitations shall be continue at the expiry of the time limit.
(175) The statute of limitations as prescribed in Article 135 and 136 of the General Principles of the Civil Law may apply the provisions of the General Principles of Civil Law on suspension, interruption and extension.
For the statute of limitations of "twenty years" as prescribed in Article 137 of the General Principles of the Civil Law, the relevant provision of the General Principles of the Civil Law on extension may apply, but not the provisions on suspension and interruption.
(176) In case there are special provisions on the time for claiming for compensation and demurring on product quality by laws and regulations, the special provisions shall be followed.
(177) The statute of limitations for succession shall be implemented according to the provisions of the succession law. But if any heir does not explicitly express to give up the succession after the succession begins, he shall be deemed as accepting the succession. If the legacy has not been divided, it shall be jointly owned by the heirs. The relevant provisions of the General Principles of the Civil Law shall be apply to the suspension, interruption and extension of the statute of limitations.
VII. Application of Law for Foreign-related Civil Relations
(178) Where either party or both parties in a civil legal relationship is an alien, a stateless person or a foreign legal person, and the object of the civil legal relationship is within the territory of a foreign country, and the legal facts that produce, alter or annihilate the civil relations of rights and obligations occur in a foreign country, such relationship shall be called foreign-related civil relations.
When hearing a foreign civil relationship, the people's court shall apply the substantive law in accordance with the provisions of Chapter VIII of the General Principles of the Civil Law.
(179) For the capacity for civil conduct of any citizen of our country who settles down overseas, the law of our country shall apply if his act is conducted in the territory of China; if the act is conducted in the country he settles down, the law of the country he settles down may be applied.
(180) In case an alien conducts civil legal activities within the territory of our country, and if he is a person without capacity for civil conduct according to his domestic law, but he is a person with capacity for civil conduct according to the Chinese law, he shall be determined as a person having capacity for civil conduct.
(181) For the capacity for civil conduct of a stateless person, the law of the country where he settles down shall apply in general; if he does not settle down in the country, the law of the country of his residence may be applied.
(182) For an alien who has double or multi-nationalities, the law of the country of his residence or the country of closest connection shall be deemed as his domestic law.
(183) In case the residence of a party is not clear or cannot be determined, his habitual abode shall be his residence. If a party has several abodes, the abode that has closest connection with the civil relationship in dispute shall be his residence.
(184) For a foreign legal person, the law of its registration country shall be deemed as its domestic law, and the capacity for civil conduct of a legal person shall be determined according to its domestic law.
In case any foreign legal person carries out civil activities within the territory of China, it shall comply with the law provisions of our country.
(185) Where a party has two or more business places, the business place that has closest connection with the civil relationship in dispute shall be followed; if a party has no business place, his residence place or habitual residence shall be taken instead.
(186) Land, appurtenant easements, and the appertaining equipments of other appurtenant and construction shall be real estates. The law of the place where a real property is located shall apply to such civil relationships as the property right, sales, tenancy, mortgage and use of a real property.
(187) The lex delicti (law of the place where a tort is committed) shall include the lex loci delicti commissi (law of the place where a tort is committed) and the law of the place where the result of a tort took place. If the two laws are inconsistent with each other, the people's court may choose to apply either of them.
(188) The law of our country may be applied in the acceptance of foreign related divorce cases. For the divorces and the property divisions arising from divorce, the laws of our country shall apply. The law of the place where the marriage is concluded shall be applicable to the determination of the validity of a marriage.
(189) The law of the country that has the closest connection with the person being supported shall be applicable to the support between parents and children, husband and wife, and other person having relationship of support. The nationalities and residence of the supporter and the person being supported and the place where the property for the support of the person being supported shall all be regarded as having the closest connection with the person being supported.
(190) The domestic law of the person under guardianship shall apply to the establishment, alteration and termination of a guardianship. But the law of our country shall be applied if the person under guardianship has residence within the territory of China.
(191) Where a foreigner dies within the territory of China, his property left within the territory of China shall be handled according to the Chinese law if no one inherits it or accepts bequeath, unless it is otherwise specified by the international conventions concluded or joined in by the two countries.
(192) Where the law of a foreign country shall be applied according to law, and if different laws are implemented in different regions of the foreign country, the applicable law shall be determined according to the provisions of the law of the foreign country on adjusting domestic legal conflict. If there are no provisions in the law of the country, the law that has the closest connection with the civil relation shall be applied directly.
(193) The applicable foreign law may be found out through the following ways: a. Provided by the parties; b. Provided by the central organ of the opposite party who has concluded judicial assistant convention; c. Provided by our embassy or consulate in the foreign country; d. Provided by the embassy of the foreign country in China; e. Provided by both Chinese and foreign legal experts. If the applicable foreign law still cannot be determined through the above method, the law of the people's republic of China may be applied.
(194) In case any party has any act of evading the compulsory or prohibitive legal criterions of our country, the foreign law shall not be applied.
(195) The statute of limitations for foreign related civil juristic relations shall be determined according to the governing law for civil juristic relations determined by conflicting rules.
VIII. Miscellaneous Provisions
(196) For cases accepted after January 1st, 1987, if the civil conduct occurs before 1987, the laws and policies at the time of occurrence of the civil conduct shall be applied; if there is no concrete provisions in the laws and policies then and there, the General Principles of the Civil Law may be applied by analogy.
(197) The applicable law or policy at the time when the former trial terminates may be applied in the handling of appellate cases and retrial cases through procedures for trial supervision.
(198) In case the period stipulated by the parties is not computed from the first day of a month or a year, one month shall be 30 days, one year shall be 365 days.
In case the last day of a period is Sunday or other legal holidays, while the Sunday or other legal holiday may be flexibly exchanged, the morrow of the actual holiday shall be the last day of the period.
(199) Where the period is computed by the day, month or year, and if the parties have stipulations on the time of starting calculation, the stipulations shall be followed.
(200) Where any of the relevant provisions of the Supreme People's Court heretofore conflicts with the General Principles of the Civil Law and the present Opinions, the people's courts at all levels shall not apply it any more in the civil or economic actions of first instance and second instance.
2007年1月9日星期二
《民法通则》英文版-第九章
CHAPTER IX SUPPLEMENTARY PROVISIONS
Article 151. The people's congresses of the national autonomous areas may formulate separate adaptive or supplementary regulations or provisions in accordance with the principles of this Law and in the light of the characteristics of the local nationalities. Those formulated by the people's congresses of autonomous regions shall be submitted in accordance with the law to the Standing Committee of the National People's Congress for approval or for the record. Those formulated by the people's congresses of autonomous prefectures or autonomous counties shall be submitted to the standing committee of the people's congress in the relevant province or autonomous region for approval.
Article 152. If an enterprise under ownership by the whole people has been established with the approval of the competent authority of a province, autonomous region or centrally administered municipality or at a higher level and it has already been registered with the administrative agency for industry and commerce, before this Law comes into force, it shall automatically qualify as a legal person without having to re-register as such.
Article 153. For the purpose of this Law, " force majeure " means unforeseeable, unavoidable and insurmountable objective conditions.
Article 154. Time periods referred to in the Civil Law shall be calculated by the Gregorian calendar in years, months, days and hours.
When a time period is prescribed in hours, calculation of the period shall begin on the prescribed hour. When a time period is prescribed in days, months and years, the day on which the period begins shall not be counted as within the period; calculation shall begin on the next day.
If the last day of a time period falls on a Sunday or an official holiday, the day after the holiday shall be taken as the last day.
The last day shall end at 24:00 hours. If business hours are applicable, the last day shall end at closing time.
Article 155. In this Law, the terms " not less than, " " not more than " " within " and " expires " shall include the given figure; the terms " under " and " beyond " shall not include the given figure.
Article 156. This Law shall come into force on January 1, 1987.
Article 151. The people's congresses of the national autonomous areas may formulate separate adaptive or supplementary regulations or provisions in accordance with the principles of this Law and in the light of the characteristics of the local nationalities. Those formulated by the people's congresses of autonomous regions shall be submitted in accordance with the law to the Standing Committee of the National People's Congress for approval or for the record. Those formulated by the people's congresses of autonomous prefectures or autonomous counties shall be submitted to the standing committee of the people's congress in the relevant province or autonomous region for approval.
Article 152. If an enterprise under ownership by the whole people has been established with the approval of the competent authority of a province, autonomous region or centrally administered municipality or at a higher level and it has already been registered with the administrative agency for industry and commerce, before this Law comes into force, it shall automatically qualify as a legal person without having to re-register as such.
Article 153. For the purpose of this Law, " force majeure " means unforeseeable, unavoidable and insurmountable objective conditions.
Article 154. Time periods referred to in the Civil Law shall be calculated by the Gregorian calendar in years, months, days and hours.
When a time period is prescribed in hours, calculation of the period shall begin on the prescribed hour. When a time period is prescribed in days, months and years, the day on which the period begins shall not be counted as within the period; calculation shall begin on the next day.
If the last day of a time period falls on a Sunday or an official holiday, the day after the holiday shall be taken as the last day.
The last day shall end at 24:00 hours. If business hours are applicable, the last day shall end at closing time.
Article 155. In this Law, the terms " not less than, " " not more than " " within " and " expires " shall include the given figure; the terms " under " and " beyond " shall not include the given figure.
Article 156. This Law shall come into force on January 1, 1987.
《民法通则》英文版-第八章
CHAPTER VIII APPLICATION OF LAW IN CIVIL RELATIONS WITH FOREIGNERS
Article 142. The application of law in civil relations with foreigners shall be determined by the provisions in this CHAPTER.
If any international treaty concluded or acceded to by the People's Republic of China contains provisions differing from those in the civil laws of the People's Republic of China, the provisions of the international treaty shall apply, unless the provisions are ones on which the People's Republic of China has announced reservations.
International practice may be applied on matters for which neither the law of the People's Republic of China nor any international treaty concluded or acceded to by the People's Republic of China has any provisions.
Article 143. If a citizen of the People's Republic of China settles in a foreign country, the law of that country may be applicable as regards his capacity for civil conduct.
Article 144. The ownership of immovable property shall be bound by the law of the place where it is situated.
Article 145. The parties to a contract involving foreign interests may choose the law applicable to settlement of their contractual disputes, except as otherwise stipulated by law.
If the parties to a contract involving foreign interests have not made a choice, the law of the country to which the contract is most closely connected shall be applied.
Article 146. The law of the place where an infringing act is committed shall apply in handling compensation claims for any damage caused by the act. If both parties are citizens of the same country or have established domicile in another country, the law of their own country or the country of domicile may be applied.
An act committed outside the People's Republic of China shall not be treated as an infringing act if under the law of the People's Republic of China it is not considered an infringing act.
Article 147. The marriage of a citizen of the People's Republic of China to a foreigner shall be bound by the law of the place where they get married, while a divorce shall be bound by the law of the place where a court accepts the case.
Article 148. Maintenance of a spouse after divorce shall be bound by the law of the country to which the spouse is most closely connected.
Article 149. In the statutory succession of an estate, movable property shall be bound by the law of the decedent's last place of residence, and immovable property shall be bound by the law of the place where the property is situated.
Article 150. The application of foreign laws or international practice in accordance with the provisions of this CHAPTER shall not violate the public interest of the People's Republic of China.
Article 142. The application of law in civil relations with foreigners shall be determined by the provisions in this CHAPTER.
If any international treaty concluded or acceded to by the People's Republic of China contains provisions differing from those in the civil laws of the People's Republic of China, the provisions of the international treaty shall apply, unless the provisions are ones on which the People's Republic of China has announced reservations.
International practice may be applied on matters for which neither the law of the People's Republic of China nor any international treaty concluded or acceded to by the People's Republic of China has any provisions.
Article 143. If a citizen of the People's Republic of China settles in a foreign country, the law of that country may be applicable as regards his capacity for civil conduct.
Article 144. The ownership of immovable property shall be bound by the law of the place where it is situated.
Article 145. The parties to a contract involving foreign interests may choose the law applicable to settlement of their contractual disputes, except as otherwise stipulated by law.
If the parties to a contract involving foreign interests have not made a choice, the law of the country to which the contract is most closely connected shall be applied.
Article 146. The law of the place where an infringing act is committed shall apply in handling compensation claims for any damage caused by the act. If both parties are citizens of the same country or have established domicile in another country, the law of their own country or the country of domicile may be applied.
An act committed outside the People's Republic of China shall not be treated as an infringing act if under the law of the People's Republic of China it is not considered an infringing act.
Article 147. The marriage of a citizen of the People's Republic of China to a foreigner shall be bound by the law of the place where they get married, while a divorce shall be bound by the law of the place where a court accepts the case.
Article 148. Maintenance of a spouse after divorce shall be bound by the law of the country to which the spouse is most closely connected.
Article 149. In the statutory succession of an estate, movable property shall be bound by the law of the decedent's last place of residence, and immovable property shall be bound by the law of the place where the property is situated.
Article 150. The application of foreign laws or international practice in accordance with the provisions of this CHAPTER shall not violate the public interest of the People's Republic of China.
《民法通则》英文版-第七章
CHAPTER VII LIMITATION OF ACTION
Article 135. Except as otherwise stipulated by law, the limitation of action regarding applications to a people's court for protection of civil rights shall be two years.
Article 136. The limitation of action shall be one year on cases concerning the following:
(1) claims for compensation for bodily injuries;
(2) sales of substandard goods without proper notice to that effect;
(3) delays in paying rent or refusal to pay rent; or
(4) loss of or damage to property left in the care of another person.
Article 137. A limitation of action shall begin when the entitled person knows or should know that his rights have been infringed upon. However, the people's court shall not protect his rights if 20 years have passed since the infringement. Under special circumstances, the people's court may extend the limitation of action.
Article 138. If a party chooses to fulfil obligations voluntarily after the limitation of action has expired, he shall not be subject to the limitation.
Article 139. A limitation of action shall be suspended during the last six months of the limitation if the plaintiff cannot exercise his right of claim because of force majeure or other obstacles. The limitation shall resume on the day when the grounds for the suspension are eliminated.
Article 140. A limitation of action shall be discontinued if a suit is brought or if one party makes a claim for or agrees to fulfilment of obligations. A new limitation shall be counted from the time of the discontinuance.
Article 141. If the law has other stipulations concerning limitation of action, those stipulations shall apply.
Article 135. Except as otherwise stipulated by law, the limitation of action regarding applications to a people's court for protection of civil rights shall be two years.
Article 136. The limitation of action shall be one year on cases concerning the following:
(1) claims for compensation for bodily injuries;
(2) sales of substandard goods without proper notice to that effect;
(3) delays in paying rent or refusal to pay rent; or
(4) loss of or damage to property left in the care of another person.
Article 137. A limitation of action shall begin when the entitled person knows or should know that his rights have been infringed upon. However, the people's court shall not protect his rights if 20 years have passed since the infringement. Under special circumstances, the people's court may extend the limitation of action.
Article 138. If a party chooses to fulfil obligations voluntarily after the limitation of action has expired, he shall not be subject to the limitation.
Article 139. A limitation of action shall be suspended during the last six months of the limitation if the plaintiff cannot exercise his right of claim because of force majeure or other obstacles. The limitation shall resume on the day when the grounds for the suspension are eliminated.
Article 140. A limitation of action shall be discontinued if a suit is brought or if one party makes a claim for or agrees to fulfilment of obligations. A new limitation shall be counted from the time of the discontinuance.
Article 141. If the law has other stipulations concerning limitation of action, those stipulations shall apply.
《民法通则》英文版-第六章-第四节
SECTION 4 METHODS OF BEARING CIVIL LIABILITY
Article 134. The main methods of bearing civil liability shall be:
(1) cessation of infringements;
(2) removal of obstacles;
(3) elimination of dangers;
(4) return of property;
(5) restoration of original condition;
(6) repair, reworking or replacement;
(7) compensation for losses;
(8) payment of breach of contract damages;
(9) elimination of ill effects and rehabilitation of reputation; and
(10) extension of apology.
The above methods of bearing civil liability may be applied exclusively or concurrently.
When hearing civil cases, a people's court, in addition to applying the above stipulations, may serve admonitions, order the offender to sign a pledge of repentance, and confiscate the property used in carrying out illegal activities and the illegal income obtained therefrom. It may also impose fines or detentions as stipulated by law.
Article 134. The main methods of bearing civil liability shall be:
(1) cessation of infringements;
(2) removal of obstacles;
(3) elimination of dangers;
(4) return of property;
(5) restoration of original condition;
(6) repair, reworking or replacement;
(7) compensation for losses;
(8) payment of breach of contract damages;
(9) elimination of ill effects and rehabilitation of reputation; and
(10) extension of apology.
The above methods of bearing civil liability may be applied exclusively or concurrently.
When hearing civil cases, a people's court, in addition to applying the above stipulations, may serve admonitions, order the offender to sign a pledge of repentance, and confiscate the property used in carrying out illegal activities and the illegal income obtained therefrom. It may also impose fines or detentions as stipulated by law.
《民法通则》英文版-第六章-第三节
SECTION 3 CIVIL LIABILITY FOR INFRINGEMENT OF RIGHTS
Article 117. Anyone who encroaches on the property of the state, a collective or another person shall return the property; failing that, he shall reimburse its estimated price.
Anyone who damages the property of the state, a collective or another person shall restore the property to its original condition or reimburse its estimated price. If the victim suffers other great losses therefrom, the infringer shall compensate for those losses as well.
Article 118. If the rights of authorship (copyrights), patent rights, rights to exclusive use of trademarks, rights of discovery, rights of invention or rights for scientific and technological research achievements of citizens or legal persons are infringed upon by such means as plagiarism, alteration or imitation, they shall have the right to demand that the infringement be stopped, its ill effects be eliminated and the damages be compensated for.
Article 119. Anyone who infringes upon a citizen's person and causes him physical injury shall pay his medical expenses and his loss in income due to missed working time and shall pay him living subsidies if he is disabled; if the victim dies, the infringer shall also pay the funeral expenses, the necessary living expenses of the deceased's dependents and other such expenses.
Article 120. If a citizen's right of personal name, portrait, reputation or honour is infringed upon, he shall have the right to demand that the infringement be stopped, his reputation rehabilitated, the ill effects eliminated and an apology made; he may also demand compensation for losses.
The above paragraph shall also apply to infringements upon a legal person's right of name, reputation or honour.
Article 121. If a state organ or its personnel, while executing its duties, encroaches upon the lawful rights and interests of a citizen or legal person and causes damages, it shall bear civil liability.
Article 122. If a substandard product causes property damage or physical injury to others, the manufacturer or seller shall bear civil liability according to law. If the transporter or storekeeper is responsible for the matter, the manufacturer or seller shall have the right to demand compensation for its losses.
Article 123. If any person causes damage to other people by engaging in operations that are greatly hazardous to the surroundings, such as operations conducted high above the ground, or those involving high pressure, high voltage, combustibles, explosives, highly toxic or radioactive substances or high-speed means of transport, he shall bear civil liability; however, if it can be proven that the damage was deliberately caused by the victim, he shall not bear civil liability.
Article 124. Any person who pollutes the environment and causes damages to others in violation of state provisions for environmental protection and the prevention of pollution shall bear civil liability in accordance with the law.
Article 125. Any constructor who engages in excavation, repairs or installation of underground facilities in a public place, on a roadside or in a passageway without setting up clear signs and adopting safety measures and thereby causes damages to others shall bear civil liability.
Article 126. If a building or any other installation or an object placed or hung on a structure collapses, detaches or drops down and causes damages to others, its owner or manager shall bear civil liability, unless he can prove himself not a fault.
Article 127. If a domesticated animal causes harm to any person, its keeper or manager shall bear civil liability. If the harm occurs through the fault of the victim, the keeper or manager shall not bear civil liability; if the harm occurs through the fault of a third party, the third party shall bear civil liability.
Article 128. A person who causes harm for exercising justifiable de fence shall not bear civil liability. If justifiable defence exceeds the limits of necessity and undue harm is caused, an appropriate amount of civil liability shall be borne.
Article 129. If harm occurs through emergency actions taken to avoid danger, the person who gave rise to the danger shall bear civil liability. If the danger arose from natural causes, the person who took the emergency actions may either be exempt from civil liability or bear civil liability to an appropriate extent. If the emergency measures taken are improper or exceed the limits of necessity and undue harm is caused, the person who took the emergency action shall bear civil liability to an appropriate extent.
Article 130. If two or more persons jointly infringe upon another person's rights and cause him damages, they shall bear joint liability.
Article 131. If a victim is also at fault for causing the harm, damages, the civil liability of the infringer may be reduced.
Article 132. If none of the parties are at fault in a damage that has been caused, they may share civil liability according to the actual circumstances.
Article 133. If a person without or with limited capacity for civil conduct causes damages to others, his guardian shall bear civil liability. If the guardian has done his duty of guardianship, his civil liability may be appropriately reduced.
If a person who has property but is without or with limited capacity for civil conduct causes damages to others, the expenses of compensation shall be paid from his property. Shortfalls in such expenses shall be appropriately compensated for by the guardian unless the guardian is a unit.
Article 117. Anyone who encroaches on the property of the state, a collective or another person shall return the property; failing that, he shall reimburse its estimated price.
Anyone who damages the property of the state, a collective or another person shall restore the property to its original condition or reimburse its estimated price. If the victim suffers other great losses therefrom, the infringer shall compensate for those losses as well.
Article 118. If the rights of authorship (copyrights), patent rights, rights to exclusive use of trademarks, rights of discovery, rights of invention or rights for scientific and technological research achievements of citizens or legal persons are infringed upon by such means as plagiarism, alteration or imitation, they shall have the right to demand that the infringement be stopped, its ill effects be eliminated and the damages be compensated for.
Article 119. Anyone who infringes upon a citizen's person and causes him physical injury shall pay his medical expenses and his loss in income due to missed working time and shall pay him living subsidies if he is disabled; if the victim dies, the infringer shall also pay the funeral expenses, the necessary living expenses of the deceased's dependents and other such expenses.
Article 120. If a citizen's right of personal name, portrait, reputation or honour is infringed upon, he shall have the right to demand that the infringement be stopped, his reputation rehabilitated, the ill effects eliminated and an apology made; he may also demand compensation for losses.
The above paragraph shall also apply to infringements upon a legal person's right of name, reputation or honour.
Article 121. If a state organ or its personnel, while executing its duties, encroaches upon the lawful rights and interests of a citizen or legal person and causes damages, it shall bear civil liability.
Article 122. If a substandard product causes property damage or physical injury to others, the manufacturer or seller shall bear civil liability according to law. If the transporter or storekeeper is responsible for the matter, the manufacturer or seller shall have the right to demand compensation for its losses.
Article 123. If any person causes damage to other people by engaging in operations that are greatly hazardous to the surroundings, such as operations conducted high above the ground, or those involving high pressure, high voltage, combustibles, explosives, highly toxic or radioactive substances or high-speed means of transport, he shall bear civil liability; however, if it can be proven that the damage was deliberately caused by the victim, he shall not bear civil liability.
Article 124. Any person who pollutes the environment and causes damages to others in violation of state provisions for environmental protection and the prevention of pollution shall bear civil liability in accordance with the law.
Article 125. Any constructor who engages in excavation, repairs or installation of underground facilities in a public place, on a roadside or in a passageway without setting up clear signs and adopting safety measures and thereby causes damages to others shall bear civil liability.
Article 126. If a building or any other installation or an object placed or hung on a structure collapses, detaches or drops down and causes damages to others, its owner or manager shall bear civil liability, unless he can prove himself not a fault.
Article 127. If a domesticated animal causes harm to any person, its keeper or manager shall bear civil liability. If the harm occurs through the fault of the victim, the keeper or manager shall not bear civil liability; if the harm occurs through the fault of a third party, the third party shall bear civil liability.
Article 128. A person who causes harm for exercising justifiable de fence shall not bear civil liability. If justifiable defence exceeds the limits of necessity and undue harm is caused, an appropriate amount of civil liability shall be borne.
Article 129. If harm occurs through emergency actions taken to avoid danger, the person who gave rise to the danger shall bear civil liability. If the danger arose from natural causes, the person who took the emergency actions may either be exempt from civil liability or bear civil liability to an appropriate extent. If the emergency measures taken are improper or exceed the limits of necessity and undue harm is caused, the person who took the emergency action shall bear civil liability to an appropriate extent.
Article 130. If two or more persons jointly infringe upon another person's rights and cause him damages, they shall bear joint liability.
Article 131. If a victim is also at fault for causing the harm, damages, the civil liability of the infringer may be reduced.
Article 132. If none of the parties are at fault in a damage that has been caused, they may share civil liability according to the actual circumstances.
Article 133. If a person without or with limited capacity for civil conduct causes damages to others, his guardian shall bear civil liability. If the guardian has done his duty of guardianship, his civil liability may be appropriately reduced.
If a person who has property but is without or with limited capacity for civil conduct causes damages to others, the expenses of compensation shall be paid from his property. Shortfalls in such expenses shall be appropriately compensated for by the guardian unless the guardian is a unit.
《民法通则》英文版-第六章-第二节
SECTION 2 CIVIL LIABILITY FOR BREACH OF CONTRACT
Article 111. If a party fails to fulfil its contractual obligations or violates the terms of a contract while fulfilling the obligations, the other party shall have the right to demand fulfilment or the taking of remedial measures and claim compensation for its losses.
Article 112. The party that breaches a contract shall be liable for compensation equal to the losses consequently suffered by the other party.
The parties may specify in a contract that if one party breaches the contract it shall pay the other party a certain amount of breach of contract damages; they may also specify in the contract the method of assessing the compensation for any losses resulting from a breach of contract.
Article 113. If both parties breach the contract, each party shall bear its respective civil liability.
Article 114. If one party is suffering losses due to the other party's breach of contract, it shall take prompt measures to prevent the losses from increasing; if it does not promptly do so, it shall not have the right to claim compensation for the additional losses.
Article 115. A party's right to claim compensation for losses shall not be affected by the alteration or termination of a contract.
Article 116. If a party fails to fulfil its contractual obligations on account of a higher authority, it shall first compensate for the losses of the other party or take other remedial measures as contractually agreed and then the higher authority shall be responsible for settling the losses it
sustained.
Article 111. If a party fails to fulfil its contractual obligations or violates the terms of a contract while fulfilling the obligations, the other party shall have the right to demand fulfilment or the taking of remedial measures and claim compensation for its losses.
Article 112. The party that breaches a contract shall be liable for compensation equal to the losses consequently suffered by the other party.
The parties may specify in a contract that if one party breaches the contract it shall pay the other party a certain amount of breach of contract damages; they may also specify in the contract the method of assessing the compensation for any losses resulting from a breach of contract.
Article 113. If both parties breach the contract, each party shall bear its respective civil liability.
Article 114. If one party is suffering losses due to the other party's breach of contract, it shall take prompt measures to prevent the losses from increasing; if it does not promptly do so, it shall not have the right to claim compensation for the additional losses.
Article 115. A party's right to claim compensation for losses shall not be affected by the alteration or termination of a contract.
Article 116. If a party fails to fulfil its contractual obligations on account of a higher authority, it shall first compensate for the losses of the other party or take other remedial measures as contractually agreed and then the higher authority shall be responsible for settling the losses it
sustained.
《民法通则》英文版-第六章-第一节
CHAPTER VI CIVIL LIABILITY
SECTION 1 GENERAL STIPULATIONS
Article 106. Citizens and legal persons who breach a contract or fail to fulfil other obligations shall bear civil liability.
Citizens and legal persons who through their fault encroach upon state or collective property, or the property or person of other people shall bear civil liability.
Civil liability shall still be borne even in the absence of fault, if the law so stipulates.
Article 107. Civil liability shall not be borne for failure to perform a contract or damage to a third party if it is caused by force majeure, except as otherwise provided by law.
Article 108. Debts shall be cleared. If a debtor is unable to repay his debt immediately, he may repay by instalments with the consent of the creditor or a ruling by a people's court. If a debtor is capable of repaying his debt but refuses to do so, repayment shall be compelled by the decision of a people's court.
Article 109. If a person suffers damages from preventing or stopping the encroachment on state or collective property, or the property or person of a third party, the infringer shall bear responsibility for compensation, and the beneficiary may also give appropriate compensation.
Article 110. Citizens or legal persons who bear civil liability shall also be held for administrative responsibility if necessary. If the acts committed by citizens and legal persons constitute crimes, criminal responsibility of their legal representatives shall be investigated in accordance with the law.
SECTION 1 GENERAL STIPULATIONS
Article 106. Citizens and legal persons who breach a contract or fail to fulfil other obligations shall bear civil liability.
Citizens and legal persons who through their fault encroach upon state or collective property, or the property or person of other people shall bear civil liability.
Civil liability shall still be borne even in the absence of fault, if the law so stipulates.
Article 107. Civil liability shall not be borne for failure to perform a contract or damage to a third party if it is caused by force majeure, except as otherwise provided by law.
Article 108. Debts shall be cleared. If a debtor is unable to repay his debt immediately, he may repay by instalments with the consent of the creditor or a ruling by a people's court. If a debtor is capable of repaying his debt but refuses to do so, repayment shall be compelled by the decision of a people's court.
Article 109. If a person suffers damages from preventing or stopping the encroachment on state or collective property, or the property or person of a third party, the infringer shall bear responsibility for compensation, and the beneficiary may also give appropriate compensation.
Article 110. Citizens or legal persons who bear civil liability shall also be held for administrative responsibility if necessary. If the acts committed by citizens and legal persons constitute crimes, criminal responsibility of their legal representatives shall be investigated in accordance with the law.
《民法通则》英文版-第五章-第四节
SECTION 4 PERSONAL RIGHTS
Article 98. Citizens shall enjoy the rights of life and health.
Article 99. Citizens shall enjoy the right of personal name and shall be entitled to determine, use or change their personal names in accordance with relevant provisions. Interference with, usurpation of and false representation of personal names shall be prohibited.
Legal persons, individual businesses and individual partnerships shall enjoy the right of name. Enterprises as legal persons, individual businesses and individual partnerships shall have the right to use and lawfully assign their own names.
Article 100. Citizens shall enjoy the right of portrait.
The use of a citizen's portrait for profits without his consent shall be prohibited.
Article 101. Citizens and legal persons shall enjoy the right of reputation. The personality of citizens shall be protected by law, and the use of insults, libel or other means to damage the reputation of citizens or legal persons shall be prohibited.
Article 102. Citizens and legal persons shall enjoy the right of honour. It shall prohibited to unlawfully divest citizens and legal persons of their honorary titles.
Article 103. Citizens shall enjoy the right of marriage by choice. Mercenary marriages, marriages upon arbitrary decision by any third party and any other acts of interference in the freedom of marriage shall be prohibited.
Article 104. Marriage, the family, old people, mothers and children shall be protected by law.
The lawful rights and interests of the handicapped shall be protected by law.
Article 105. Women shall enjoy equal civil rights with men.
Article 98. Citizens shall enjoy the rights of life and health.
Article 99. Citizens shall enjoy the right of personal name and shall be entitled to determine, use or change their personal names in accordance with relevant provisions. Interference with, usurpation of and false representation of personal names shall be prohibited.
Legal persons, individual businesses and individual partnerships shall enjoy the right of name. Enterprises as legal persons, individual businesses and individual partnerships shall have the right to use and lawfully assign their own names.
Article 100. Citizens shall enjoy the right of portrait.
The use of a citizen's portrait for profits without his consent shall be prohibited.
Article 101. Citizens and legal persons shall enjoy the right of reputation. The personality of citizens shall be protected by law, and the use of insults, libel or other means to damage the reputation of citizens or legal persons shall be prohibited.
Article 102. Citizens and legal persons shall enjoy the right of honour. It shall prohibited to unlawfully divest citizens and legal persons of their honorary titles.
Article 103. Citizens shall enjoy the right of marriage by choice. Mercenary marriages, marriages upon arbitrary decision by any third party and any other acts of interference in the freedom of marriage shall be prohibited.
Article 104. Marriage, the family, old people, mothers and children shall be protected by law.
The lawful rights and interests of the handicapped shall be protected by law.
Article 105. Women shall enjoy equal civil rights with men.
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