Chinese Civil Code - The General Part -
Zusammenfassung
In modern times, the codification of the entire civil law has become a rare phenomenon. Nevertheless, the Chinese law-maker has decided to create the first Civil Code in the history of PRC and set out an ambitious timeline to achieve this goal. In the process of construction, the future Chinese Civil Code will principally follow the Pandectist System and, in particular, contain a General Part. On 15th March 2017, the General Part was enacted, as scheduled, in the form of a single statute for the time being. By 2020, the other books covering the law of personality, obligations, property law, family and estate law, should be codified as well. These books, together with the General Part, will form the future Civil Code. The purpose of this book is to provide a concise and in-depth practical guide to this new statute, namely the General Rules of Civil Law (GRCL). To this end, it seeks to deliver a general picture of the GRCL and to explore the important provisions in more detail. In addition, it strives to provide answers to the question of which laws apply in the case of conflict between the GRCL and other statutes. What is also equally important is to provide the readers with information about the origin of legal concepts in the GRCL and the process in which Chinese lawmakers decided to adopt or reject certain foreign legal concepts.
Abstract
In modern times, the codification of the entire civil law has become a rare phenomenon. Nevertheless, the Chinese law-maker has decided to create the first Civil Code in the history of PRC and set out an ambitious timeline to achieve this goal. In the process of construction, the future Chinese Civil Code will principally follow the Pandectist System and, in particular, contain a General Part. On 15th March 2017, the General Part was enacted, as scheduled, in the form of a single statute for the time being. By 2020, the other books covering the law of personality, obligations, property law, family and estate law, should be codified as well. These books, together with the General Part, will form the future Civil Code. The purpose of this book is to provide a concise and in-depth practical guide to this new statute, namely the General Rules of Civil Law (GRCL). To this end, it seeks to deliver a general picture of the GRCL and to explore the important provisions in more detail. In addition, it strives to provide answers to the question of which laws apply in the case of conflict between the GRCL and other statutes. What is also equally important is to provide the readers with information about the origin of legal concepts in the GRCL and the process in which Chinese lawmakers decided to adopt or reject certain foreign legal concepts.
- I–XXII Titelei/Inhaltsverzeichnis I–XXII
- 1–27 Part I. Introduction and Basic Principles 1–27
- 1–14 Chapter 1. Introduction 1–14
- 1–3 I. Legislative History 1–3
- 1. Codification Attempts after the Foundation of the PRC
- 2. Creation of the GRCL
- 3. Structure and Title of the GRCL
- 3–4 II. Justification for the Codification 3–4
- 1. Scholarly Response
- 2. Official Explanations
- 4–7 III. Technique of the Codification: Systematization or Compilation 4–7
- 1. Different Schools
- 2. Exclusion Technique
- 3. Relationship between GRCL and GPCL
- 4. Language of the GRCL
- 7–9 IV. Relationship with Other Fields of Law 7–9
- 1. Relationship with Individual Civil Laws
- 2. Relationship with Commercial Law
- 3. Relationship with Private International Law
- 4. Relationship with Intellectual Property Law
- 5. Relationship with Labor Law
- 9–11 V. Participation of Scholars 9–11
- 1. Bureaucratization of the Legislation
- 2. Difficulty in Reaching Consensus
- 11–13 VI. The Role of German Law 11–13
- 1. Return to German Tradition
- 2. Formation of German Tradition
- 3. Wholesale vs. Retail
- 13–14 VII. Innovations in the GRCL 13–14
- 14–27 Chapter 2. Fundamental Principles 14–27
- 14–16 I. Overview 14–16
- 1. Legislative Purpose
- 2. Scope of Regulation
- 3. Fundamental Principles
- 4. Origin and Justification
- 5. Protection of Private Rights
- 16–17 II. Equality 16–17
- 17–17 III. Private Autonomy 17–17
- 17–18 IV. Fairness 17–18
- 18–19 V. Good Faith 18–19
- 1. Negotiation in Bad Faith
- 2. Duty of Confidentiality
- 3. Duty of Disclosure
- 4. Recovery
- 19–21 VI. Legality, Public Order and Morals 19–21
- 1. Legislative Process
- 2. Interpretation
- 3. Judicial Practice
- 4. Relationship to Mandatory Law
- 5. Relationship to Good Faith
- 21–22 VII. Environmental Protection 21–22
- 22–24 VIII. Customs as Source of Law 22–24
- 1. Legislative Process
- 2. Law
- 3. Customs
- 24–27 IX. Principle of lex specialis 24–27
- 1. GRCL and GPCL
- 2. GRCL and Individual Civil Laws
- 3. GRCL and Other Specific National Laws
- 4. GRCL and Older Judicial Interpretations
- 5. Retroactivity
- 6. Summary
- 27–99 Part II. Law of Persons 27–99
- 27–30 Chapter 3. Overview 27–30
- 27–27 I. Structure 27–27
- 27–28 II. Overhaul 27–28
- 28–30 III. Controversy 28–30
- 30–48 Chapter 4. Natural Person 30–48
- 30–34 I. Legal Capacity 30–34
- 1. Capacity to be a Subject of Legal Rights
- 2. Capacity to Act
- 34–36 II. Ability of Tort Liability 34–36
- 1. Distinctive Features
- 2. Nature of Minors’ Tort Liability
- 3. Comparative Perspective
- 4. Case Example
- 36–37 III. Domicile 36–37
- 1. Domicile
- 2. Residence
- 37–42 IV. Custody and Custodian 37–42
- 1. Systematic Arrangement
- 2. Appointment
- 3. Custodian’s Duty, Liability and Right
- 4. Revocation of Custodianship
- 5. Restoration of Custody
- 6. Termination of Custody
- 42–43 V. Declaration of Disappearance 42–43
- 1. Prerequisites
- 2. Applicant
- 3. Receiver of Property
- 4. Duty of the Receiver
- 5. Revocation
- 43–44 VI. Declaration of Death 43–44
- 1. Prerequisites
- 2. Legal Effect
- 3. Revocation
- 44–46 VII. Individual Traders 44–46
- 1. History
- 2. Governing Law
- 3. Liability
- 4. Practical Implication
- 46–48 VIII. Rural Contracting Households 46–48
- 1. History
- 2. Establishment
- 3. Liability
- 4. Distribution of Profits
- 48–77 Chapter 5. Legal Persons 48–77
- 48–51 I. Doctrinal Basis and Categories of Legal Persons 48–51
- 1. Theoretical Basis
- 2. Primary Differentiation Based on the Profit-Orientation
- 51–60 II. General Part 51–60
- 1. Establishment
- 2. Legal Capacity
- 3. Legal Representative
- 4. Domicile
- 5. Effect of Registration
- 6. Merger/Split
- 7. Termination
- 8. Dissolution
- 9. Liquidation
- 10. Branch Offices
- 60–65 III. For-Profit Legal Person 60–65
- 1. Establishment
- 2. Organs
- 3. Duty of Shareholders
- 4. Arm-Length Principle
- 5. Cancellation of Resolutions
- 6. Business Ethics and Corporate Social Responsibility
- 65–74 IV. Non-Profit Legal Person 65–74
- 1. Overview
- 2. Non-Profit
- 3. Public Service Units
- 4. Associations
- 5. Donation-Based Legal Person
- 6. Social Service Organizations
- 7. Religious Activities Sites
- 74–77 V. Special Legal Person 74–77
- 1. (Party and State) Organs
- 2. Rural Collective Economic Organizations
- 3. Cooperative Economic Organizations
- 4. Grassroots Self-Governing People’s Organizations
- 77–81 Chapter 6. Non-Legal Person Organization 77–81
- 77–78 I. Overview 77–78
- 1. Term
- 2. Necessity of Third Civil Subject
- 78–78 II. Establishment 78–78
- 78–78 III. Liability 78–78
- 78–79 IV. Representation 78–79
- 79–81 V. Dissolution and Liquidation 79–81
- 81–84 Chapter 7. Introduction 81–84
- 81–82 I. Overview 81–82
- 1. Purpose
- 2. Structure
- 3. Scholarly Comments
- 82–83 II. Acquisition of Rights 82–83
- 83–84 III. Principles of Exercising Rights 83–84
- 84–99 Chapter 8. Personal and Property Rights 84–99
- 84–87 I. Personality Rights 84–87
- 1. Freedom and Dignity
- 2. Specific Personality Rights
- 3. Data Protection
- 4. Personality Rights associated with Marriage and Family
- 5. An Independent Book on Personality Rights
- 87–92 II. Rights in Things 87–92
- 1. Equal Protection for Different Owners
- 2. Concept and Object
- 3. Numerus Clausus
- 4. Expropriation and Requisition
- 92–94 III. Obligatory Rights 92–94
- 1. Overview
- 2. Management without Mandate
- 3. Unjust Enrichment
- 94–96 IV. Intellectual Property Rights 94–96
- 96–99 V. Other Enumerated Rights 96–99
- 1. Succession Right
- 2. Shareholder’s Rights and other Investor’s Rights
- 3. Data Rights and Virtual Property
- 99–143 Part IV. Juristic Act 99–143
- 99–106 Chapter 9. Overview 99–106
- 99–102 I. Evolution History 99–102
- 1. Concept of Civil Juristic Act
- 2. Relationship between the GRCL and the Contract Law
- 3. Civil Juristic Act vs. Commercial Act
- 4. Act to Create Contractual Obligation and Act of Disposal
- 102–103 II. Types 102–103
- 1. Unilateral Juristic Act
- 2. Bilateral Juristic Act
- 3. Multilateral Juristic Act
- 4. Resolution
- 103–104 III. Form 103–104
- 1. Written Form
- 2. Requirement on Formation or Validity
- 104–105 IV. Formation and Effectiveness 104–105
- 105–106 V. Juristic Act and Declaration of Intention 105–106
- 106–112 Chapter 10. Declarations of Intention 106–112
- 106–106 I. Term 106–106
- 106–107 II. Form Requirement 106–107
- 1. Freedom of Form
- 2. Silence
- 107–109 III. Taking Effect 107–109
- 1. Declaration of Intention with Counterparty
- 2. Declaration of Intention without Counterparty
- 3. Declaration of Intention by Means of Announcement
- 109–110 IV. Withdrawal 109–110
- 110–112 V. Interpretation 110–112
- 1. Methods of Interpretation
- 2. Approach of the GRCL
- 3. Criticism
- 112–140 Chapter 11. Effect of Juristic Acts 112–140
- 112–112 I. General Requirements on Validity 112–112
- 1. Comparison between art. 143 GRCL and art. 55 GPCL
- 2. Distinctive Approach from a Comparative Perspective
- 112–123 II. Grounds for Invalidity 112–123
- 1. Disability
- a) Incapacity
- b) Limited Capacity
- 2. Simulated Act
- 3. Violation of Mandatory Law
- 4. Violation of Public Order and Good Morals
- 5. Malicious Collusion
- 123–126 III. Other Invalidity Grounds 123–126
- 1. Mental Reservation and Joke
- 2. Juristic Acts Subject to Approval
- 126–132 IV. Grounds for Avoidance 126–132
- 1. Mistake
- 2. Fraud
- 3. Coercion
- 4. Obvious Unfairness
- 132–139 V. Effects of Nullity and Avoidance 132–139
- 1. Exercising the Right to Avoidance
- 2. Legal Effect
- 3. Recovery
- 4. Lex Specialis
- 139–140 VI. Reinterpretation and Confirmation of Void Juristic Act 139–140
- 140–143 Chapter 12. Conditions and Terms 140–143
- 140–142 I. Conditions 140–142
- 1. Concept
- 2. Preclusion of Conditions
- 3. Condition Precedent and Condition Subsequent
- 4. Conditions Dependent upon the Will of One Party
- 5. Legal Fiction of the Fulfilment of Condition
- 142–143 II. Terms 142–143
- 1. Concept
- 2. Types
- 3. Preclusion of Terms
- 143–179 Part V. Agency 143–179
- 143–158 Chapter 13. Overview 143–158
- 143–143 I. Evolution History 143–143
- 143–144 II. Scope of Application 143–144
- 1. Juristic Act
- 2. Exclusion of Agency
- 144–149 III. Types of Agency 144–149
- 1. Authorized, Statutory and Designated Agency
- 2. Representation of a Legal Entity by its Employees
- 3. Direct and Indirect Agency/Disclosed and Undisclosed Agency
- 4. Collective and Joint Agency
- 5. Active and Passive Agency
- 6. Agency of Necessity
- 149–152 IV. Elements of Agency 149–152
- 1. Authority
- 2. Capacity of the Agent to Contract
- 3. In the Name of the Principal
- 4. Conducting a Juristic Act
- 152–158 V. Duty and Liability of the Agent 152–158
- 1. No Self-Dealing
- 2. Not to Delegate Authority
- 3. Liability for Bad Faith Collusion
- 4. Illegality
- 158–166 Chapter 14. Representation without Authority 158–166
- 158–158 I. Definition 158–158
- 158–160 II. Prerequisites 158–160
- 1. Appearance of Agency
- 2. Absence of Authority
- 3. No Valid Representation
- 4. Reliance of the Counterparty upon the Authorization
- 160–162 III. Ratification 160–162
- 1. Manner of Ratification
- 2. Addressee of the Ratification
- 3. Time of Ratification
- 4. Restrictions on Ratification
- 5. Avoidance of Ratification
- 162–163 IV. Agent’s Notice and Withdrawal 162–163
- 163–166 V. Consequence in Case of Refusal of Ratification 163–166
- 1. Counterparty in Good Faith
- 2. Counterparty in Bad Faith
- 166–176 Chapter 15. Apparent Authority 166–176
- 166–166 I. Evolution History 166–166
- 166–171 II. Elements 166–171
- 1. Appearance of Authority
- 2. Good Faith of the Counterparty
- 3. The Imputability of the Principal
- 4. Causation and Relevant Point of Time
- 171–173 III. Agency by Estoppel and Apparent Representation 171–173
- 1. Agency by Estoppel
- 2. Apparent Representation
- 173–174 IV. Exceptions and Use of Seal 173–174
- 1. Legislative History
- 2. Judicial Practice
- 3. Cases
- 174–176 V. Legal Consequence 174–176
- 1. Relationship between Principal and Counterparty
- 2. Relationship between Principal and Agent
- 3. Relationship between Counterparty and Agent
- 176–179 Chapter 16. Termination of Agency 176–179
- 176–177 I. Termination of Authorized Representation 176–177
- 1. Operation of Law
- 2. Act of the Parties
- 177–177 II. Agent’s Act Conducted After the Principal’s Death 177–177
- 177–179 III. Expiration of Statutory Agency 177–179
- 179–217 Part VI. Civil Liability 179–217
- 179–201 Chapter 17. Overview 179–201
- 179–180 I. Evolution History 179–180
- 1. Structure
- 2. Priority of Civil Liability
- 3. Critique in General
- 180–186 II. Debate over Independence of Civil Liability 180–186
- 1. Term
- 2. No Civil Liability in German Law
- 3. The Needs for the Independence of Civil Liability in the Chinese Civil Code
- 4. The Way to Systemize Civil Liability
- 186–189 III. Types of Liabilities 186–189
- 1. Proportionate Liability
- 2. Joint and Several Liability
- 189–195 IV. Concurrence of Civil Liabilities 189–195
- 1. Statutory Basis
- 2. Theoretical Basis
- 3. Scope of Application
- 4. Scope of Remedies Subject to Concurrence
- 5. Right of Election
- 6. Theories of Reconstruction
- 195–199 V. Good Samaritan Law 195–199
- 1. Evolution History
- 2. Prerequisites
- 3. Relationship with art. 183 GRCL
- 4. Art. 184 GRCL and Management without Mandate
- 5. Liability toward a Third Party
- 199–201 VI. Protection of Personality Rights of Heroes and Martyrs 199–201
- 1. Concept
- 2. Prerequisites
- 3. Standing to Sue
- 4. Relationship with Existing Law
- 201–213 Chapter 18. Remedies 201–213
- 201–201 I. Overview 201–201
- 201–204 II. Defensive Claims 201–204
- 1. Cessation of Infringement
- 2. Removal of Interference
- 3. Elimination of Danger
- 4. Harmonization of the Terms
- 5. Procedural Rules
- 204–207 III. Restitution 204–207
- 1. Return of Property
- 2. Restoration in the Former State
- 3. Elimination of Negative Impact/Restoration of the Good Reputation
- 4. Apology
- 207–211 IV. Compensation 207–211
- 1. Compensation in Contract Law
- 2. Compensation in Tort Law
- 3. Punitive Damages
- 211–213 V. Other Remedies 211–213
- 1. Repair, Reworking and Replacement
- 2. Specific Performance
- 3. Contract Penalty
- 4. Interest for Delay
- 213–217 Chapter 19. Defense 213–217
- 213–215 I. Force Majeure 213–215
- 1. Scope of Application
- 2. Definition
- 3. Relationship with Hardship
- 4. Exclusion or Reduction
- 5. Exceptions
- 215–215 II. Self-Defense 215–215
- 1. Concept
- 2. Prerequisites
- 3. Beyond the Necessary Limit
- 215–217 III. Necessity 215–217
- 1. Concept
- 2. Prerequisites
- 3. Legal Effect
- 217–233 Part VII. Statute of Limitations 217–233
- 217–220 Chapter 20. Overview 217–220
- 217–217 I. Evolution History 217–217
- 217–219 II. Legal Nature of Statute of Limitations 217–219
- 1. Debate on the Theories
- 2. Invocation of Prescription
- 3. Voluntary Undertaking to Perform/Voluntary Performance
- 219–220 III. Acquisitive Prescription 219–220
- 220–230 Chapter 21. General Rules on Statute of Limitations 220–230
- 220–224 I. Standard Statute of Limitation 220–224
- 1. Period of Limitations and Exceptions
- 2. Extension and Reduction
- 3. Commencement
- 4. Suspension
- 5. Interruption
- 224–226 II. Claims not Subject to Limitation 224–226
- 1. GRCL
- 2. SPC
- 226–226 III. Impermissibility of Party Agreements 226–226
- 226–227 IV. Cut-Off Periods 226–227
- 1. Concept
- 2. Computation
- 3. Exceptions
- 227–227 V. Statute of Limitations in Arbitration 227–227
- 227–230 VI. Residual Questions 227–230
- 1. Secured Transactions
- 2. Offset
- 3. Joint Debtors
- 4. Alternative Period
- 5. Laches Defense
- 6. Other Questions
- 230–233 Chapter 22. Computation of the Periods 230–233
- 230–230 I. Computation Units of Periods 230–230
- 230–230 II. Commencement of Periods 230–230
- 1. Days, Months and Years
- 2. Hours
- 230–231 III. End of Periods 230–231
- 1. Last Day
- 2. Last Hour
- 231–233 IV. Exceptions 231–233
- 233–253 Bibliography 233–253
- 253–259 Relevant Laws and Regulations 253–259
- 259–264 Index 259–264
