合同法若干问题解释英文版

1、合同法若干问题解释英文版Interpretations of Certain Issues Concerning the Application of The Contract LawThe Supreme PeoplesCourtsInterpretationsof CertainIssues Concerning the Applicationof The Contract Law of the Peoples Republic of China(Part One)Judicial Interpretations(1999 )No. 19Adopted at the 1090th Sess

2、ion of the AdjudicationCommittee of the Supreme PeoplesCourton December 1, 1999The Supreme PeoplesCourtsInterpretationsof CertainIssues Concerning the Applicationof The Contract Law of the Peoples Republic of China( Part One), whichshall become operative as from December 29, 1999, were adopted at th

3、e 1090th Session of theAdjudication Committee of the Supreme Peoples Court on December 1, 1999 and are herebypromulgated.Pursuant to The Contract Law of the Peoples Republic of China(hereinafter theContract Law), and with a view to facilitating the proper adjudication of contractualdisputes,we hereb

4、y promulgatethe followinginterpretationsof certainissuesconcerningtheapplication of the Contract Law by Peoples Courts:Scope of Application of the Law Clause 1 Where a suit is brought to a Peoples Court in respect of a dispute arising out of a contract formed after the operative date of the Contract

5、 Law, the provisions of the Contract Law shall apply; where a suit is brought to aPeoplesCourt in respect ofa dispute concerning acontract formed beforethe operative dateof the Contract Law, except otherwise provided herein, the provisions of the law in effectat the time shall apply, provided that i

6、f the law in effect at the time did not provide forsuch matter, the relevant provision of the Contract Law may apply.Clause 2 Where a contract was formed before the operative date of the Contract Law, butthe prescribed time limit for performance extends beyond, or commences after, the operativedate

7、of the Contract Law, if a dispute arises out of its performance, the relevant provisionsof Chapter Four of the Contract Law shall apply.Clause 3 In determining the validity of a contract formed before the operative date ofthe Contract Law, if application of the law in effect at the time leads to its

8、 invalidation,but application of the Contract Law leads to affirmation of its validity, the Peoples Courtshall apply the Contract Law.Clause 4 After the Contract Law became operative, a Peoples Court may only invalidatea contract in accordance with laws adopted by the National Peoples Congress or it

9、s StandingCommittee,or administrativeregulationsadopted by the StateCouncil,and may not invalidatea contract in accordance with any local statutes or administrative rules.Clause 5 Where a Peoples Court re-adjudicates a case on which a final judgment has beenrendered, the Contract Law does not apply.

10、II. Time LimitforActionClause6 Ina disputearising out of a technologycontract,whereinfringement of the right of a party occurred before the operative date of the Contract Law,if there was a lapse of more than one year between the date on which the party knew or shouldhave known thatitsrightwas infri

11、ngedand the operativedate ofthe ContractLaw, thePeoplesCourt will no longer enforcesuch right;where thelapsewas lessthan one year,the timelimitduring which the party may bring a suit shall be two years.Clause 7 In a dispute arising out of a technology import/export contract, whereinfringement of the

12、 right of a party occurred before the operative date of the Contract Law,if there was a lapse of more than two years between the date on which the party knew or shouldhave known thatitsrightwas infringedand the operativedate ofthe ContractLaw, thePeoplesCourt will no longer enforce such right; where

13、 the lapse was less than two years, the timelimit during which the party may bring a suit shall be four years.Clause 8 The timeperiodof oneyear set outin Article 55,and the timeperiodoffiveyears set out in Article 75 and Paragraph 2 of Article 104 of the Contract Law are fixed,and are not subject to

14、 the rules governing the suspension, termination or extension of timelimit for action.Validity of Contracts Clause 9 Where as set forth in Paragraph 2 of Article 44 of the Contract Law, the relevant law or administration regulation provides that the effectivenessof a certain contract is subject to c

15、ompletion of the relevant approval procedure, or therelevant approval and registration procedures, if before completion of court debate by theparties in the trialoffirstinstance,thepartiesstillfailto carry outtherelevantapprovalprocedure, or approval and registration procedures, as the case may be,

16、the Peoples Courtshall rule that the contract has not yet taken effect; if the relevant lawor administrationregulationrequiresthata certaincontractbe registeredwithoutsubjectingits effectiveness to such registration, then failure to effect registration shall not impairthe effectiveness of the contra

17、ct, provided that such failure constitutes an impediment tothe conveyance of title to, or such other real right in, the subject matter of the contract.In the case of amendment, assignment or termination of a contract as set forth inParagraph 2 of Article 77, Article 87, and Paragraph 2 of Article 96

18、 of the Contract Law,the provisions of the previous Paragraph apply.Clause 10 Where the parties entered into a contract the subject matter of which wasoutside their scope of business, the PeoplesCourt shall not invalidatethe contract onsuch ground, except where conclusion of the contract was in viol

19、ation of state restrictionconcerning, or licensing requirement for, a particular business sector, or in violation ofany law or administrativeregulationprohibitingthepartiesfrom participationin a particularbusiness sector.IV.Subrogation Clause 11 Where an obligee is to bring a suit of subrogation pur

20、suantto Article 73 of the Contract Law, the following conditions shall be met:1 ） The obligees creditors right against the obligor is lawful;2） The obligors delay in exercising the creditors right due to it has caused harmtothe obligee;3 ） The creditors right of the obligor is due;4)The creditors ri

21、ght of the obligor is not exclusively personal to it.Clause 12 As referred to in Paragraph 1 of Article 73, a creditors right exclusivelypersonalto the obligormeans a claim foralimony,childsupport,parentalsupportor succession,or,a claim forwage, retirementpension,old age pension,death benefits,reloc

22、ationallowanceor life insurance, or, a personal injury claim.Clause 13 The clause Where the obligordelayed in exercisingitscreditorsrightagainsta third person that was due, thereby harming the obligee in Article 73 of the Contract Lawrefers to the following circumstance: The obligor fails to render

23、performance which is dueto the obligee, and further, it has failed to enforce a creditors right which is due to itand which involves the payment of money against an obligor either through a suit in court orthrough arbitration, thereby frustrating the obligees realization of the creditors rightdue to

24、 it.Where the secondary obligor(i.e. the obligor of the original obligor)deniesthat theobligor has delayed inexercising its creditorsright due toit,the secondary obligor bearsthe burden of proof.Clause 14 Where an obligee brings a suit of subrogation pursuant to Article 73 of theContract Law, jurisd

25、iction shall vest in the Peoples Court in the place where the defendantis domiciled.Clause 15 Where after bringing a suit against an obligor to a Peoples Court, anobligee brings a suit of subrogation against a secondary obligor to the same court, if suchsuit complies with the provisions of Article 1

26、3 hereof as well as the conditions for bringinga suit set forth in Article 108 of the Civil Procedural Law of the Peoples Republic of China, the court shall accept such suit; where such suit does not comply with Article 13 hereof, thecourt shall direct the obligee to bring a separate suit to the Peo

27、ples Court in the place where the secondary obligor is domiciled.Before judgment on the suitbroughtby the obligeeagainstthe obligortakes legaleffect,the Peoples Court adjudicating the suit of subrogation against the secondary obligor shallstay such suit in accordance with Item（ 5） of Article 136 of

28、the Civil Procedural Law ofthe Peoples Republic of China.Clause 16 Where in a suit of subrogation brought to a Peoples Court, an obligee namesonly the secondary obligor as the defendant without also naming the original obligor as aninterestedthirdperson,the PeoplesCourt may add the originalobligoras

29、 an interestedthirdperson.Where in suits of subrogation brought separately by two or more obligees, the samesecondary obligor is named as the defendant, the Peoples Court may combine the suits foradjudication.Clause 17 In a suit of subrogation, if the obligee petitions the Peoples Court forpreservat

30、ivemeasure againstthe assets of the secondary obligor,itshallprovideappropriatefinancial assurance.Clause 18 In a suitof subrogation,the secondary obligormay, in respectof the obligee,avail itself of any defense it has against the original obligor.In a suitof subrogation,where the obligorraisesa def

31、ense againstthe obligeesclaim,if the Peoples Court affirms the defense, it shall dismiss the suit brought by the obligee.Clause 19 In a suitof subrogation,ifthe obligeeprevails,the courtfee shallbe borneby the secondary obligor, and shall be paid in priority out of the proceeds from theenforced cred

32、itors right.Clause 20 Where an obligee brings a suit of subrogation against a secondary obligor, andthe Peoples Court affirms the subrogation, the secondary obligor shall perform the paymentobligation, whereupon the respective obligee-obligor relationships between the obligee andthe obligor, and bet

33、ween the obligor and the secondary obligor, are discharged accordingly.Clause 21 In a suitof subrogation,where the amount in subrogationclaimed by the obligeethe Peoples Court shall not enforce the claim to the extent the claimed amount exceeds theactual amount.Clause 22 In a suitof subrogation,ifth

34、e obligoralso bringsa claim againstthe secondaryobligor for the difference between the amount owedto it and the amount insubrogation claimed by the obligee, the Peoples Court shall direct the obligor to bring aseparate suit to the Peoples Court with the proper jurisdiction.Where such suit brought se

35、parately by the obligor meets the legally prescribedconditions, the Peoples Court shall accept such suit; the Peoples Court accepting the suitbrought by the obligor shall stay such suit in accordance with the law pending the legaleffectiveness of the judgment on the suit of subrogation.V.Cancellation Right Clause 23 Where an obligee brings a suit to enforce itscancellationrightpursuant toArticle 74of the Contract Law,jurisdiction shallvestin thePeoples Court in the place where the defendant is domiciled.Clause 24 If in a suit to enforce its cancellation