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发信人: quakefans (王伟是我偶像), 信区: CL
标 题: 《民法通则》英文版
发信站: 荔园晨风BBS站 (Sun Oct 14 11:57:56 2001), 转信
GENERAL PRINCIPLES OF THE CIVIL LAW OF THE PEOPLE'S REPUBLIC OF CHINA
(Effective Date：1987.01.01--Ineffective Date：)
CONTENTS
CHAPTER I BASIC PRINCIPLES
CHAPTER II CITIZEN (NATURAL PERSON)
SECTION 1 CAPACITY FOR CIVIL RIGHTS AND CAPACITY FOR CIVIL CONDUCT
SECTION 2 GUARDIANSHIP
SECTION 3 DECLARATIONS OF MISSING PERSONS AND DEATH
SECTION 4 INDIVIDUAL BUSINESSES AND LEASEHOLDING FARM HOUSEHOLDS
SECTION 5 INDIVIDUAL PARTNERSHIP
CHAPTER III LEGAL PERSONS
SECTION 1 GENERAL STIPULATIONS
SECTION 2 ENTERPRISE AS LEGAL PERSON
SECTION 3 OFFICIAL ORGAN, INSTITUTION AND SOCIAL ORGANIZATION AS
LEGAL PERSONS
SECTION 4 ECONOMIC ASSOCIATION
CHAPTER IV CIVIL JURISTIC ACTS AND AGENCY
SECTION 1 CIVIL JURISTIC ACTS
SECTION 2 AGENCY
CHAPTER V CIVIL RIGHTS
SECTION 1 PROPERTY OWNERSHIP AND RELATED OWNERSHIP RIGHTS
SECTION 2 CREDITORS' RIGHTS
SECTION 3 INTELLECTUAL PROPERTY RIGHTS
SECTION 4 PERSONAL RIGHTS
CHAPTER VI CIVIL LIABILITY
SECTION 1 GENERAL STIPULATIONS
SECTION 2 CIVIL LIABILITY FOR BREACH OF CONTRACT
SECTION 3 CIVIL LIABILITY FOR INFRINGEMENT OF RIGHTS
SECTION 4 METHODS OF BEARING CIVIL LIABILITY
CHAPTER VII LIMITATION OF ACTION
CHAPTER VIII APPLICATION OF LAW IN CIVIL RELATIONS WITH FOREIGNERS
CHAPTER IX SUPPLEMENTARY PROVISIONS
CHAPTER I BASIC PRINCIPLES
Article 1. This Law is formulated in accordance with the
Constitution and the actual situation in our country,
drawing upon our practical experience in civil activities, for
the purpose of protecting the lawful civil rights and interests
of citizens and legal persons and correctly adjusting civil
relations, so as to meet the needs of the developing socialist
modernization.
Article 2. The Civil Law of the People's Republic of China shall
adjust property relationships and personal relationships
between civil subjects with equal status, that is,
between citizens, between legal persons and between citizens and
legal persons.
Article 3. Parties to a civil activity shall have equal status.
Article 4. In civil activities, the principles of
voluntariness, fairness, making compensation for equal
value, honesty and credibility shall be observed.
Article 5. The lawful civil rights and interests of citizens and
legal persons shall be protected by law; no organization
or individual may infringe upon them.
Article 6. Civil activities must be in compliance with the law;
where there are no relevant provisions in the law, they shall
be in compliance with state policies.
Article 7. Civil activities shall have respect for social
ethics and shall not harm the public interest, undermine
state economic plans or disrupt social economic order.
Article 8. The law of the People's Republic of China shall
apply to civil activities within the People's Republic of
China, except as otherwise stipulated by law.
The stipulations of this Law as regards citizens shall apply to
foreigners and stateless persons within the People's
Republic of China, except as otherwise stipulated by law.
CHAPTER II CITIZEN (NATURAL PERSON)
SECTION 1 CAPACITY FOR CIVIL RIGHTS AND CAPACITY FOR CIVIL CONDUCT
Article 9. A citizen shall have the capacity for civil
rights from birth to death and shall enjoy civil rights and
assume civil obligations in accordance with the law.
Article 10. All citizens are equal as regards their capacity for
civil rights.
Article 11. A citizen aged 18 or over shall be an adult. He
shall have full capacity for civil conduct, may
independently engage in civil activities and shall be called
a person with full capacity for civil conduct.
A citizen who has reached the age of 16 but not the age 18 and
whose main source of income is his own labour shall be regarded as
a person with full capacity for civil conduct.
Article 12. A minor aged 10 or over shall be a person with
limited capacity for civil conduct and may engage in
civil activities appropriate to his age and intellect; in other
civil activities, he shall be represented by his agent ad
litem or participate with the consent of his agent ad litem.
A minor under the age of 10 shall be a person having no capacity for
civil conduct and shall be represented in civil activities by his
agent ad litem.
Article 13. A mentally ill person who is unable to recognize
his own conduct shall be a person having no capacity for civil
conduct and shall be represented in civil activities by his agent ad
litem.
A mentally ill person who is unable to fully recognize his own
conduct shall be a person with limited capacity for civil conduct
and may engage in civil activities appropriate to his
mental health; in other civil activities, he shall be
represented by his agent ad litem or participate with the consent
of his agent ad litem.
Article 14. The guardian of a person without or with limited
capacity for civil conduct shall be his agent ad litem.
Article 15. The domicile of a citizen shall be the place
where his residence is registered; if his habitual residence is
not the same as his domicile, his habitual residence shall be
regarded as his domicile.
SECTION 2 GUARDIANSHIP
Article 16. The parents of a minor shall be his guardians.
If the parents of a minor are dead or lack the competence to
be his guardian, a person from the following categories who has
the competence to be a guardian shall act as his guardian:
(1) paternal or maternal grandparent;
(2) elder brother or sister; or
(3) any other closely connected relative or friend willing to
bear the responsibility of guardianship and having approval
from the units of the minor's parents or from the neighbourhood or
village committee in the place of the minor's residence.
In case of a dispute over guardianship, the units of the minor's
parents or the neighbourhood or village committee in the place of
his residence shall appoint a guardian from among the minor's
near relatives. If disagreement over the appointment leads to a
lawsuit, the people's court shall make a ruling.
If none of the persons listed in the first two paragraphs of this
Article is available to be the guardian, the units of the
minor's parents, the neighbourhood or village committee in the
place of the minor's residence or the civil affairs department
shall act as his guardian.
Article 17. A person from the following categories shall
act as guardian for a mentally ill person without or with
limited capacity for civil conduct:
(1) spouse;
(2) parent;
(3) adult child;
(4) any other near relative;
(5) any other closely connected relative or friend willing to
bear the responsibility of guardianship and having approval from
the unit to which the mentally ill person belongs or from
the neighbourhood or village committee in the place of his
residence.
In case of a dispute over guardianship, the unit to which the
mentally ill person belongs, or the neighbourhood or
village committee in the place of his residence, shall appoint a
guardian from among his near relatives. If disagreement over the
appointment leads to a lawsuit, the people's court shall make a
ruling.
If none of the persons listed in the first paragraph of this
Article is available to be the guardian, the unit to which
the mentally ill person belongs, the neighbourhood or
village committee in the place of his residence or the
civil affairs department shall act as his guardian.
Article 18. A guardian shall fulfil his duty of
guardianship and protect the person, property and other
lawful rights and interests of his wards. A guardian shall not
handle the property of his ward unless it is in the ward's interests.
A guardian's rights to fulfil his guardianship in accordance with
the law shall be protected by law.
If a guardian does not fulfil his duties as guardian or infringes
upon the lawful rights and interests of his ward, he shall be
held responsible; if a guardian causes any property loss for his
ward, he shall compensate for such loss. The people's
court may disqualify a guardian based on the application of a
concerned party or unit.
Article 19. A person who shares interests with mental patient may
apply to a people's court for a declaration that the mental
patient is a person without or with limited capacity for civil
conduct.
With the recovery of the health of a person who has been
declared by a people's court to be without or with limited
capacity for civil conduct, and upon his own application or
that of an interested person, the people's court may declare
him to be a person with limited or full capacity for civil conduct.
SECTION 3 DECLARATIONS OF MISSING PERSONS AND DEATH
Article 20. If a citizen's whereabouts have been unknown for two
years, an interested person may apply to a people's court for
a declaration of the citizen as missing.
If a person's whereabouts become unknown during a war, the
calculation of the time period in which his whereabouts
are unknown shall begin on the final day of the war.
Article 21. A missing person's property shall be placed in the
custody of his spouse, parents, adult children or other
closely connected relatives or friends. In case of a dispute over
custody, if the persons stipulated above are unavailable or are
incapable of taking such custody, the property shall be placed in
the custody of a person appointed by the people's court.
Any taxes, debts and other unpaid expenses owed by a missing person
shall defrayed by the custodian out of the missing person's property.
Article 22. In the event that a person who has been declared
missing reappears or his whereabouts is ascertained, the
people's court shall, upon his own application or that of an
interested person, revoke the declaration of his missing person
status.
Article 23. Under any of the following circumstances, an
interested person may apply to the people's court for
the declaration of a citizen's death:
(1) if the citizen's whereabouts have been unknown for four years; or
(2) if the citizen's whereabouts have been unknown for two years
after the date of an accident in which he was involved.
If a person's whereabouts become unknown during a war, the
calculation of the time period in which his whereabouts
are unknown shall begin on the final day of the war.
Article 24. In the event that a person who has been declared
as dead reappears or it is ascertained that he is alive, the
people's court shall, upon his own application or that of an
interested person, revoke the declaration of his death.
Any civil juristic acts performed by a person with capacity for
civil conduct during the period in which he has been declared
dead shall be valid.
Article 25. A person shall have the right to request the return
of his property, if the declaration of his death has been
revoked. Any citizen or organization that has obtained such
property in accordance with the Inheritance Law shall return
the original items or make appropriate compensation if the
original items are no longer existent.
SECTION 4 INDIVIDUAL BUSINESSES AND LEASEHOLDING FARM HOUSEHOLDS
Article 26. " Individual businesses " refers to businesses
run by individual citizens who have been lawfully registered
and approved to engage in industrial or commercial operation
within the sphere permitted by law. An individual business may adopt
a shop name.
Article 27. " Leaseholding farm households " refers to
members of a rural collective economic organization who
engage in commodity production under a contract and within the
spheres permitted by law.
Article 28. The legitimate rights and interests of
individual businesses and leaseholding farm households shall
be protected by law.
Article 29. The debts of an individual business or a
leaseholding farm household shall be secured with the
individual's property if the business is operated by an
individual and with the family's property if the business is operated
by a family.
SECTION 5 INDIVIDUAL PARTNERSHIP
Article 30. " Individual partnership " refers to two or more
citizens associated in a business and working together, with
each providing funds, material objects, techniques and so on according
to an agreement.
Article 31. Partners shall make a written agreement covering the
funds each is to provide, the distribution of profits,
the responsibility for debts, the entering into and withdrawal
from partnership, the ending of partnership and other such matters.
Article 32. The property provided by the partners shall be under
their unified management and use.
The property accumulated in a partnership operation shall belong to
all the partners.
Article 33. An individual partnership may adopt a shop name; it
shall be approved and registered in accordance with law
and conduct business operations within the range as approved and
registered.
Article 34. The operational activities of an individual
partnership shall be decided jointly by the partners, who each
shall have the right to carry out and supervise over those activities.
The partners may elect a responsible person. All partners shall bear
civil liability for the operational activities of the
responsible person and other personnel.
Article 35. A partnership's debts shall be secured with the
partners' property in proportion to their respective
contributions to the investment or according to the agreement made.
Partners shall undertake joint liability for their partnership's
debts, except as otherwise stipulated by law. Any partner
who overpays his share of the partnership's debts shall have the
right to claim compensation from the other partners.
CHAPTER III LEGAL PERSONS
SECTION 1 GENERAL STIPULATIONS
Article 36. A legal person shall be an organization that has
capacity for civil rights and capacity for civil conduct
and independently enjoys civil rights and assumes civil
obligations in accordance with the law.
A legal person's capacity for civil rights and capacity for civil
conduct shall begin when the legal person is established and
shall end when the legal person terminates.
Article 37. A legal person shall have the following
qualifications:
(1) establishment in accordance with the law;
(2) possession of the necessary property or funds;
(3) possession of its own name, organization and premises; and
(4) ability to independently bear civil liability.
Article 38. In accordance with the law or the articles of
association of the legal person, the responsible person who
acts on behalf of the legal person in exercising its
functions and powers shall be its legal representative.
Article 39. A legal person's domicile shall be the place where
its main administrative office is located.
Article 40. When a legal person terminates, it shall go
into liquidation in accordance with the law and discontinue all
other activities.
SECTION 2 ENTERPRISE AS LEGAL PERSON
Article 41. An enterprise under ownership by the whole people or
under collective ownership shall be qualified as a legal
person when it has sufficient funds as stipulated by the
state; has articles of association, an organization and
premises; has the ability to independently bear civil liability;
and has been approved and registered by the competent authority.
A Chinese-foreign equity joint venture, Chinese-foreign contractual
joint venture or foreign-capital enterprise established
within the People's Republic of China shall be qualified as a
legal person in China, if it has the qualifications of a
legal person and has been approved and registered by the
administrative agency for industry and commerce in accordance with
the law.
Article 42. An enterprise as legal person shall conduct
operations within the range approved and registered.
Article 43. An enterprise as legal person shall bear civil
liability for the operational activities of its
legal representatives and other personnel.
Article 44. If an enterprise as legal person is divided or
merged or undergoes any other important change, it shall register
the change with the registration authority and publicly announce it.
When an enterprise as legal person is divided or merged, its
rights and obligations shall be enjoyed and assumed by the
new legal person that results from the change.
Article 45. An enterprise as legal person shall terminate for
any of the following reasons:
(1) if it is dissolved by law;
(2) if it is disbanded;
(3) if it is declared bankrupt in accordance with the law; or
(4) for other reasons.
Article 46. When an enterprise as legal person terminates, it
shall cancel its registration with the registration
authority and publicly announce the termination.
Article 47. When an enterprise as legal person is disbanded, it
shall establish a liquidation organization and go
into liquidation. When an enterprise as legal person is
dissolved or is declared bankrupt, the competent authority or a
people's court shall organize the organs and personnel concerned
to establish a liquidation organization to liquidate the
enterprise.
Article 48. An enterprise under ownership by the whole people, as
legal person, shall bear civil liability with the property
that the state authorizes it to manage. An enterprise under
collective ownership, as legal person, shall bear civil
liability with the property it owns. A Chinese-foreign equity
joint venture, Chinese-foreign contractual joint venture
or foreign-capital enterprise as legal person shall bear
civil liability with the property it owns, except as stipulated
otherwise by law.
Article 49. Under any of the following circumstances, an
enterprise as legal person shall bear liability, its
legal representative may additionally be given administrative
sanctions and fined and, if the offence constitutes a
crime, criminal responsibility shall be investigated in accordance with
the law:
(1) conducting illegal operations beyond the range approved and
registered by the registration authority;
(2) concealing facts from the registration and tax
authorities and practising fraud;
(3) secretly withdrawing funds or hiding property to evade
repayment of debts;
(4) disposing of property without authorization after the
enterprise is dissolved, disbanded or declared bankrupt;
(5) failing to apply for registration and make a public
announcement promptly when the enterprise undergoes a change
or terminates, thus causing interested persons to suffer heavy
losses;
(6) engaging in other activities prohibited by law, damaging the
interests of the state or the public interest.
SECTION 3 OFFICIAL ORGAN, INSTITUTION AND SOCIAL ORGANIZATION AS
LEGAL PERSONS
Article 50. An independently funded official organ shall be
qualified as a legal person on the day it is established.
If according to law an institution or social organization
having the qualifications of a legal person needs not go
through the procedures for registering as a legal person, it
shall be qualified as a legal person on the day it is
established; if according to law it does need to go through
the registration procedures, it shall be qualified as a legal
person after being approved and registered.
SECTION 4 ECONOMIC ASSOCIATION
Article 51. If a new economic entity is formed by the enterprises
or an enterprise and an institution that engage in
economic association and it independently bears civil liability
and has the qualifications of a legal person, the new entity
shall be qualified as a legal person after being approved and
registered by the competent authority.
Article 52. If the enterprises or an enterprise and an
institution that engage in economic association conduct
joint operation but do not have the qualifications of a legal
person, each party to the association shall, in proportion to
its respective contribution to the investment or according to the
agreement made, bear civil liability with the property each party
owns or manages. If joint liability is specified by law or by
agreement, the parties shall assume joint liability.
Article 53. If the contract for economic association of
enterprises or of an enterprise and an institution specifies that
each party shall conduct operations independently, it shall
stipulate the rights and obligations of each party, and each party
shall bear civil liability separately.
CHAPTER IV CIVIL JURISTIC ACTS AND AGENCY
SECTION 1 CIVIL JURISTIC ACTS
Article 54. A civil juristic act shall be the lawful act of a
citizen or legal person to establish, change or terminate
civil rights and obligations.
Article 55. A civil juristic act shall meet the following
requirements:
(1) the actor has relevant capacity for civil conduct;
(2) the intention expressed is genuine; and
(3) the act does not violate the law or the public interest.
Article 56. A civil juristic act may be in written, oral or other
form. If the law stipulates that a particular form be adopted,
such stipulation shall be observed.
Article 57. A civil juristic act shall be legally binding once
it is instituted. The actor shall not alter or rescind his
act except in accordance with the law or with the other party's
consent.
Article 58. Civil acts in the following categories shall be
null and void:
(1) those performed by a person without capacity for civil conduct;
(2) those that according to law may not be independently
performed by a person with limited capacity for civil conduct;
(3) those performed by a person against his true intentions as a
result of cheating, coercion or exploitation of his
unfavourable position by the other party;
(4) those that performed through malicious collusion are detrimental
to the interest of the state, a collective or a third party;
(5) those that violate the law or the public interest;
(6) economic contracts that violate the state's mandatory plans; and
(7) those that performed under the guise of legitimate acts
conceal illegitimate purposes.
Civil acts that are null and void shall not be legally binding
from the very beginning.
Article 59. A party shall have the right to request a people's
court or an arbitration agency to alter or rescind the following
civil acts:
(1) those performed by an actor who seriously misunderstood the
contents of the acts; and
(2) those that are obviously unfair.
Rescinded civil acts shall be null and void from the very beginning.
Article 60. If a part of a civil act is null and void, it
shall not affect the validity of other parts, which shall remain
valid.
Article 61. After a civil act has been determined to be null
and void or has been rescinded, the party who acquired property as
a result of the act shall return it to the party who
suffered a loss. The erring party shall compensate the other
party for the losses it suffered as a result of the act; if both
sides are in error, they shall each bear their proper share of the
responsibility.
If the two sides have conspired maliciously and performed a civil
act that is detrimental to the interests of the state, a
collective or a third party, the property that they thus
obtained shall be recovered and turned over to the state or the
collective, or returned to the third party.
Article 62. A civil juristic act may have conditions attached
to it. Conditional civil juristic acts shall take effect
when the relevant conditions are met.
SECTION 2 AGENCY
Article 63. Citizens and legal persons may perform civil
juristic acts through agents
An agent shall perform civil juristic acts in the principal's name
within the scope of the power of agency. The principal shall
bear civil liability for the agent's acts of agency.
Civil juristic acts that should be performed by the principal
himself, pursuant to legal provisions or the agreement
between the two parties, shall not be entrusted to an agent.
Article 64. Agency shall include entrusted agency, statutory
agency and appointed agency.
An entrusted agent shall exercise the power of agency as entrusted
by the principal; a statutory agent shall exercise the power
of agency as prescribed by law; and an appointed agent
shall exercise the power of agency as designated by a people's
court or the appointing unit.
Article 65. A civil juristic act may be entrusted to an
agent in writing or orally. If legal provisions require
the entrustment to be written, it shall be effected in writing.
Where the entrustment of agency is in writing, the power of attorney
shall clearly state the agent's name, the entrusted tasks
and the scope and duration of the power of agency, and it
shall be signed or sealed by the principal.
If the power of attorney is not clear as to the authority
conferred, the principal shall bear civil liability towards the
third party, and the agent shall be held jointly liable.
Article 66. The principal shall bear civil liability for
an act performed by an actor with no power of agency, beyond
the scope of his power of agency or after his power of
agency has expired, only if he recognizes the act retroactively.
If the act is not so recognized, the performer shall bear civil
liability for it. If a principal is aware that a civil act is being
executed in his name but fails to repudiate it, his consent
shall be deemed to have been given.
An agent shall bear civil liability if he fails to perform his
duties and thus causes damage to the principal.
If an agent and a third party in collusion harm the principal's
interests, the agent and the third party shall be held jointly
liable.
If a third party is aware that an actor has no power of agency
or is overstepping his power of agency, or that his power of
agency has expired, and yet joins him in a civil act and
thus brings damage to other people, the third party and the
actor shall be held jointly liable.
Article 67. If an agent is aware that the matters entrusted are
illegal but still carries them out, or if a principal is
aware that his agent's acts are illegal but fails to object to
them, the principal and the agent shall be held jointly liable.
Article 68. If in the principal's interests an entrusted agent
needs to transfer the agency to another person, he
shall first obtain the principal's consent. If the principal's
consent is not obtained in advance, the matter shall be reported
to him promptly after the transfer, and if the principal objects, the
agent shall bear civil liability for the acts of the
transferee; however, an entrusted agency transferred in
emergency circumstances in order to safeguard the principal's
interests shall be excepted.
Article 69. An entrusted agency shall end under any of the
following circumstances:
(1) when the period of agency expires or when the tasks
entrusted are completed;
(2) when the principal rescinds the entrustment or the agent
declines the entrustment;
(3) when the agent dies;
(4) when the principal loses his capacity for civil conduct; or
(5) when the principal or the agent ceases to be a legal person.
Article 70. A statutory or appointed agency shall end under any
of the following circumstances:
(1) when the principal gains or recovers capacity for civil conduct;
(2) when the principal or the agent dies;
(3) when the agent loses capacity for civil conduct;
(4) when the people's court or the unit that appointed the agent
rescinds the appointment; or
(5) when the guardian relationship between the principal and the
agent ends for other reasons.
CHAPTER V CIVIL RIGHTS
SECTION 1 PROPERTY OWNERSHIP AND RELATED PROPERTY RIGHTS
Article 71. " Property ownership " means the owner's rights to
lawfully possess, utilize, profit from and dispose of his property.
Article 72. Property ownership shall not be obtained in
violation of the law.
Unless the law stipulates otherwise or the parties concerned have
agreed on other arrangements, the ownership of property
obtained by contract or by other lawful means shall be
transferred simultaneously with the property itself.
Article 73. State property shall be owned by the whole people.
State property is sacred and inviolable, and no organization or
individual shall be allowed to seize, encroach upon,
privately divide, retain or destroy it.
Article 74. Property of collective organizations of the working
masses shall be owned collectively by the working masses. This
shall include:
(1) land, forests, mountains, grasslands, unreclaimed land,
beaches and other areas that are stipulated by law to be
under collective ownership;
(2) property of collective economic organizations;
(3) collectively owned buildings, reservoirs, farm irrigation
facilities and educational, scientific, cultural, health, sports
and other facilities; and
(4) other property that is collectively owned.
Collectively owned land shall be owned collectively by the village
peasants in accordance with the law and shall be worked
and managed by village agricultural production cooperatives,
other collective agricultural economic organizations or
villagers' committees. Land already under the ownership of the
township (town) peasants collective economic organizations may be
collectively owned by the peasants' of the township (town).
Collectively owned property shall be protected by law, and no
organization or individual may seize, encroach upon,
privately divide, destroy or illegally seal up, detain, freeze or
confiscate it.
Article 75. A citizen's personal property shall
include his lawfully-earned income, housing, savings, articles
for daily use, objects art, books, reference materials,
trees, livestock, as well as means of production the law permits a
citizen to possess and other lawful property.
A citizen's lawful property shall be protected by law, and no
organization or individual may appropriate, encroach upon,
destroy or illegally seal up, detain, freeze or confiscate it.
Article 76. Citizens shall have the right of inheritance under the
law.
Article 77. The lawful property of social organizations,
including religious organizations, shall be protected by law.
Article 78. Property may be owned jointly by two or more
citizens or legal persons.
There shall be two kinds of joint ownership, namely co-ownership by
shares and common ownership. Each of the co-owners by
shares shall enjoy the rights and assume the obligations
respecting the joint property in proportion to his share.
Each of the common owners shall enjoy the rights and assume the
obligations respecting the joint property.
Each co-owner by shares shall have the right to withdraw his own
share of the joint property or transfer its ownership.
However, when he offers to sell his share, the other co-owners
shall have a right of pre-emption if all other conditions are equal.
Article 79. If the owner of a buried or concealed object is
unknown, the object shall belong to the state. The unit
that receives the object shall commend or give a material
reward to the unit or individual that turns in the object.
Lost-and-found objects, flotsam and stray animals shall be
returned to their rightful owners, and any costs thus incurred
shall be reimbursed by the owners.
Article 80. State-owned land may be used according to law by
units under ownership by the whole people; it may be also
lawfully assigned for use by units under collective ownership.
The state shall protect the usufruct of the land, and the
usufructuary shall be obligated to manage, protect and properly use the
land.
The right of citizens and collectives to contract for management
of land under collective ownership or of state owned land
under collective use shall be protected by law. The
rights and obligations of the two contracting parties shall
be stipulated in the contract signed in accordance with the law.
Land may not be sold, leased, mortgaged or illegally transferred
by any other means.
Article 81. State-owned forests, mountains, grasslands,
unreclaimed land, beaches, water surfaces and other
natural resources may be used according to law by units under
ownership by the whole people; or they may be also lawfully
assigned for use by units under collective ownership. The state
shall protect the usufruct of those resources, and the
usufructuary shall be obliged to manage, protect and properly use
them.
State-owned mineral resources may be mined according to law by units
under ownership by the whole people and units under
collective ownership; citizens may also lawfully mine such
resources. The state shall protect lawful mining rights.
The right of citizens and collectives to lawfully contract
for the management of forests, mountains, grasslands,
unreclaimed land, beaches and water surfaces that are owned by the
collectives or owned by the state but used by collectives shall
be protected by law. The rights and obligations of the two
contracting parties shall be stipulated in the contract in
accordance with the law.
State-owned mineral resources and waters as well as forest land,
mountains, grasslands, unreclaimed land and beaches owned by
the state and those that are lawfully owned by collectives may
not be sold, leased, mortgaged or illegally transferred by any other
means.
Article 82. Enterprises under ownership by the whole people
shall lawfully enjoy the rights of management over property
that the state has authorized them to manage and operate, and
the rights shall be protected by law.
Article 83. In the spirit of helping production, making
things convenient for people's life, enhancing unity and
mutual assistance, and being fair and reasonable, neighbouring users
of real estate shall maintain proper neighbourly relations over
such matters as water supply, drainage, passageway, ventilation
and lighting. Anyone who causes obstruction or damages to his
neighbour, shall stop the infringement, eliminate the
obstruction and compensate for the damages.
SECTION 2 CREDITORS' RIGHTS
Article 84. A debt represents a special relationship of
rights and obligations established between the parties
concerned, either according to the agreed terms of a
contract or legal provisions. The party entitled to the rights
shall be the creditor, and the party assuming the obligations shall
be the debtor.
The creditor shall have the right to demand that the debtor
fulfil his obligations as specified by the contract or
according to legal provisions.
Article 85. A contract shall be an agreement whereby the
parties establish, change or terminate their
civil relationship. Lawfully established contracts shall be
protected by law.
Article 86. When there are two or more creditors to a deal,
each creditor shall be entitled to rights in proportion to
his proper share of the credit. When there are two or more debtors
to a deal, each debtor shall assume obligations in proportion to his
proper share of the debt.
Article 87. When there are two or more creditors or debtors to a
deal, each of the joint creditors shall be entitled to demand
that the debtor fulfil his obligations, in accordance with
legal provisions or the agreement between the parties; each of
the joint debtors shall be obliged to perform the entire
debt, and the debtor who performs the entire debt shall be
entitled to ask the other joint debtors to reimburse him for their
shares of the debt.
Article 88. The parties to a contract shall fully fulfil
their obligations pursuant to the terms of the contract.
If a contract contains ambiguous terms regarding quality, time
limit for performance, place of performance, or price, and
the intended meaning cannot be determined from the context of
relevant terms in the contract, and if the parties cannot
reach an agreement through consultation, the provisions below shall
apply:
(1) If quality requirements are unclear, state quality standards
shall apply; if there are no state quality standards,
generally held standards shall apply.
(2) If the time limit for performance is unclear, the debtor may
at his convenience fulfil his obligations towards the creditor;
the creditor may also demand at any time that the debtor
perform his obligations, but sufficient notice shall be given to the
debtor.
(3) If the place of performance is unclear, and the payment is
money, the performance shall be effected at the seat or
place of residence of the party receiving the payment; if the
payment is other than money, the performance shall be effected
at the seat or place of residence of the party fulfilling the
obligations.
(4) If the price agreed by the parties is unclear, the state-fixed
price shall apply. If there is no state-fixed price, the price
shall be based on market price or the price of a similar
article or remuneration for a similar service.
If the contract does not contain an agreed term regarding rights to
patent application, any party who has completed
an invention-creation shall have the right to apply for a patent.
If the contract does not contain an agreed term regarding rights to
the use of scientific and technological research achievements,
the parties shall all have the right to use such achievements.
Article 89. In accordance with legal provisions the agreement
between the parties on the performance of a debt
may be guaranteed using the methods below:
(1) A guarantor may guarantee to the creditor that the debtor shall
perform his debt. If the debtor defaults, the guarantor
shall perform the debt or bear joint liability according to
agreement. After performing the debt, the guarantor shall have
the right to claim repayment from the debtor.
(2) The debtor or a third party may offer a specific property as a
pledge. If the debtor defaults, the creditor shall be
entitled to keep the pledge to offset against the debt or
have priority in satisfying his claim out of the proceeds from
the sale of the pledge pursuant to relevant legal provisions.
(3) Within the limits of relevant legal provisions, a party may
leave a deposit with the other party. After the debtor has
discharged his debt, the deposit shall either be retained
as partial payment of the debt or returned. If the party
who leaves the deposit defaults, he shall not be entitled to
demand the return of the deposit; if the party who accepts the
deposit defaults, he shall repay the deposit in double.
(4) If a party has possession of the other party's property
according to contract, and the other party violates the
contract by failing to pay a required sum of money within the
specified time limit, the possessor shall have a lien on the
property and may keep the retained property to offset against the
debt or have priority in satisfying his claim out of the
proceeds from the sale of the property pursuant to relevant
legal provisions.
Article 90. Legitimate loan relationships shall be protected by
law.
Article 91. If a party to a contract transfers all or part
of his contractual rights or obligations to a third party,
he shall obtain the other party's consent and may not seek
profits therefrom. Contracts which according to legal
provisions are subject to state approval, such as transfers,
must be approved by the authority that originally approved the
contract, unless the law or the original contract stipulates
otherwise.
Article 92. If profits are acquired improperly and without a
lawful basis, resulting in another person's loss, the
illegal profits shall be returned to the person who suffered the loss.
Article 93. If a person acts as manager or provides services in
order to protect another person's interests when he is
not legally or contractually obligated to do so, he shall be
entitled to claim from the beneficiary the expenses necessary
for such assistance.
SECTION 3 INTELLECTUAL PROPERTY RIGHTS
Article 94. Citizens and legal persons shall enjoy rights of
authorship (copyrights) and shall be entitled to sign their
names as authors, issue and publish their works and obtain
remuneration in accordance with the law.
Article 95. The patent rights lawfully obtained by citizens and
legal persons shall be protected by law.
Article 96. The rights to exclusive use of trademarks obtained by
legal persons, individual businesses and individual
partnerships shall be protected by law.
Article 97. Citizens who make discoveries shall be entitled
to the rights of discovery. A discoverer shall have the
right to apply for and receive certificates of discovery,
bonuses or other awards.
Citizens who make inventions or other achievements in
scientific and technological researches shall have the right
to apply for and receive certificates of honour, bonuses or other
awards.
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.
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 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.
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.
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.
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.
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.
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.
--
红了樱桃，绿了芭蕉，流光容易把人抛。
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