法律适用法司法解释一英文.doc

.最高人民法院关于适用中华人民共和国合同法若干问题的解释（一） Supreme Peoples Court, Several Issues Concerning Application of the PRC, Contract Law Interpretation (1)查看更多：法律英语法释199919号(Promulgated by the Supreme Peoples Court on 19 December 1999, and effective as of 29 December 1999.)颁布日期：19991219 实施日期：19991229 颁布单位：最高人民法院Pursuant to the PRC, Contract Law (the Contract Law), the following interpretation on issues relevant to the application of the Contract Law by peoples courts are made in order to correctly try contract dispute cases:1. Applicable Scope of the LawArticle 1If a dispute arising from a contract formed after the implementation of the Contract Law is brought before the peoples court, the provisions of the Contract Law shall be applied. If a dispute arising from a contract formed before the implementation of the Contract Law is brought before the peoples court, the laws and regulations prevailing at the time shall be applied, unless otherwise stipulated herein. If there were no laws and regulations at the time governing the issue(s) in dispute, the relevant provisions of the Contract Law may be applied.Article 2The relevant provisions of Part Four of the Contract Law shall be applied to disputes arising from the performance of a contract which was formed before the implementation of the Contract Law but whose time limit for performance stipulated in the contract straddles the implementation date of the Contract Law or whose time limit for performance falls after the implementation of the Contract Law.Article 3When confirming the validity of a contract formed before the implementation of the Contract Law, the peoples court shall apply the Contract Law if the contract would be considered invalid if the law prevailing at the time is applied, but would be considered valid if the Contract Law is applied.Article 4After the implementation of the Contract Law, peoples courts shall base themselves on laws formulated by the National peoples Congress and its Standing Committee and/or administrative regulations of the State Council when confirming the invalidity of a contract, and not on local regulations or administrative rules and regulations.Article 5When retrying a case in which a final ruling was rendered before the implementation of the Contract Law, the peoples court shall not apply the Contract Law.2. Statute of Limitations on ActionsArticle 6The peoples court shall not protect the rights of a party to a technology contract dispute, if the fact of the infringement upon the partys rights occurred before the implementation of the Contract Law and more than one year has elapsed between the time the party knew or ought to have known that their rights were infringed and the date of implementation of the Contract Law. If the time elapsed does not exceed one year, the statute of limitations for the institution of an action shall be two years.Article 7The peoples court shall not protect the rights of a party to a technology import or export contract dispute, if the fact of the infringement upon the partys rights occurred before the implementation of the Contract Law and more than two years have elapsed between the time the party knew or ought to have known that their rights were infringed and the date of implementation of the Contract Law. If the time elapsed does not exceed two years, the statute of limitations for the institution of an action shall be four years.Article 8The period of one year stipulated in Article 55 and the period of five years stipulated in Article 75 and the second paragraph of Article 104 of the Contract Law are immutable periods of time not governed by the provisions on the tolling, interruption or extension of the statute of limitations.3. Validity of ContractsArticle 9In accordance with the second paragraph of Article 44 of the Contract Law, if laws or administrative regulations provide that a contract becomes effective only after the approval procedures or the procedures for approval and registration etc. are carried out, the peoples court shall determine a contract to have not become effective if the parties concerned have failed to carry out the approval procedures or the procedures for approval, registration, etc. before the conclusion of argumentation in the court of first instance. If laws or administrative regulations provide that procedures for the registration of a contract shall be carried out but do not provide that the contract shall become effective after registration, the failure of the parties to carry out registration procedures shall not affect the validity of the contract, but ownership of and other rights in rem over the subject matter of the contract may not be assigned.Such circumstances as the amendment, assignment or termination of a contract enumerated in the second paragraph of Article 77, Article 87 and the second paragraph of Article 96 of the Contract Law shall be handled on the basis of the provisions of the preceding paragraph.Article 10The peoples court shall not declare a contract invalid because a party exceeded its scope of business in concluding it, unless such party violated State regulations which subject the business so engaged in to restrictions or to the grant of franchises, or the provisions of laws or administrative regulations which prohibit such business.4. Right of SubrogationArticle 11For an obligee to institute a subrogation action in accordance with Article 73 of the Contract Law, the following conditions shall be met:1. the obligees claim against the obligor is lawful;2. the obligors negligence in exercising their own matured claim causes injury to the obligee;3. the obligors own claim has matured; and4. the obligors claim is not personal to the obligor.Article 12The phrase such claim is personal to the obligor mentioned in the first paragraph of Article 73 of the Contract Law means that such claim is a claim for payment arising from a maintenance relationship between spouses, a parents maintenance relationship towards their children, a childs maintenance relationship towards their parents or a succession relationship, or a claim for labour remuneration, retirement pension, old age pension, survivors pension, relocation expenses, life insurance indemnification, personal injury indemnification, etc.Article 13The phrase If the obligor neglects to exercise their own matured claim, thereby causing injury to the obligee mentioned in Article 73 of the Contract Law refers to the failure of the obligor both to perform their matured obligation toward the obligee and to institute court or arbitral proceedings against their own obligor to assert their own matured claim involving a monetary payment, thereby causing the obligees matured claim to be incapable of realization.If the secondary obligor (i.e. the obligor of the obligor) holds that the obligor was not negligent in exercising their matured claim, the burden of proof is on him.Article 14If the obligee institutes a subrogation action in accordance with Article 73 of the Contract Law, the competent court shall be the peoples court of the place where the defendant is domiciled.Article 15If the obligee sues the obligor before a peoples court and subsequently institutes a subrogation action against the secondary obligor in the same peoples court, such second action shall be placed on the docket and accepted if the provisions of Article 13 hereof and the requirements for the institution of actions stipulated in Article 108 of the PRC, Civil Procedure Law are complied with. If the second action does not comply with Article 13 hereof, the obligee shall be informed that they should institute a separate action in the peoples court of the place where the secondary obligor is domiciled.The peoples court which accepted a subrogation action shall suspend the proceedings in the said action in accordance with Item (e) of Article 136 of the PRC, Civil Procedure Law until the ruling in the action brought by the obligee against the obligor has become legally effective.Article 16If the obligee institutes a subrogation action in a peoples court with the secondary obligor as defendant, but does not name the obligor as a third party, the peoples court may join the obligor as a third party.If two or more obligees institute subrogation actions against the same secondary obligor, the peoples court may consolidate the actions into one trial.Article 17If the obligee petitions a peoples court to issue an order for preservation against the secondary obligors property during a subrogation action, they shall provide appropriate security in the form of property.Article 18During a subrogation action, the secondary obligor may raise against the obligee the defences available to them against the obligor.If the obligor raises an objection to the claim of the obligee during a subrogation action, and the objection is sustained after investigation, the peoples court shall rule to dismiss the obligees action.Article 19If the obligee in a subrogation action prevails, the court costs shall be borne by the secondary obligor and be paid on a priority basis from the realized claim.Article 20If, having tried a subrogation action brought against the secondary obligor by the obligee, the peoples court determines that the obligee does have a right of subrogation, the secondary obligor shall perform the obligation of payment towards the obligee, and the corresponding claim-debt relationships between the obligee and the obligor and between the obligor and the secondary obligor shall be extinguished as at that time.Article 21If in a subrogation action the amount of the obligees subrogated claim exceeds the amount of the debt owed by the obligor or the amount of the debt owed by the secondary obligor to the obligor, the peoples court shall not support the part in excess.Article 22If in a subrogation action the obligor institutes an action against the secondary obligor for the part of the claim in excess of the amount of the obligees subrogated claim, the peoples court shall inform the obligor that they should institute a separate action in the competent peoples court.If the action instituted by the obligor complies with the legal requirements, the peoples court shall accept it. The peoples court accepting the obligors suit shall suspend the proceedings in the action in accordance with the law until the ruling in the subrogation action has become legally effective.5. Right of AnnulmentArticle 23If the obligee institutes an annulment action in accordance with Article 74 of the Contract Law, the competent court shall be the peoples court of the place where the defendant is domiciled.Article 24If the obligee institutes an annulment action in accordance with Article 74 of the Contract Law and only names the obligor as defendant, without naming the beneficiary or the assignee as a third party, the peoples court may join the beneficiary or the assignee as a third party.Article 25If the obligee institutes an annulment action in accordance with Article 74 of the Contract Law and petitions the peoples court to annul the obligors act of waiving their claim or assigning their property, the peoples court shall conduct a trial in respect of the part for which the obligee asserts their right of annulment. If the act is annulled in accordance with the law, it shall be void ab initio.If two or more obligees institute an annulment action against the same obligor in respect of the same subject matter, the peoples court may consolidate the actions into one trial.Article 26Such necessary expenses as attorney fees,travel expenses, etc. incurred by the obligee in exercising their right of annulment shall be borne by the obligor. If a third party is at fault, they shall bear an appropriate share of such expenses.6. The Third Party in a Contract AssignmentArticle 27If the obligee assigns their contractual rights to a third party and a subsequent dispute between the obligor and the assignee concerning performance of the contract is brought before the peoples court, and the obligor raises a defence against the ri