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China Civil Law-General Principles of the Civil Law of the People's Republic of China: Commentary and analysis

Time:2014-03-13 Hit:1060


China Civil Law-General Principles of the Civil Law of the People's Republic of China: 
Commentary and analysis

  Known as the citizen’s code, the China Civil Law is adopted at the Fourth Session of the Sixth National People's Congress, and became effective on January.

 Aims and Basic Principles
  The China Civil Law is the total sum of legal stipulation regulating personal relations and the property relations among persons of the equal status. The basic purpose of the China Civil Law is to protect the legitimate private rights and interests of citizens and other legal persons in China.
  The principles of China Civil Law are FREE WILL, COMPENSATION AT EQUAL VALUE, EQUITY, HONESTY and TRUSTWORTHINESS. All citizens shall respect the civil law; civil activities must adhere to the principles of the civil law, and must be undertaken in conformity with the social ethics, public and national interest of China.
  According to the article 8 of the Civil Law, the provisions regarding to citizens also apply to foreign nationals within the territory of People’s Republic of China.

Natural Persons
 Natural person have capacity to enjoy civil rights from birth to the time of their death, a citizen aged 18 is consider to be an adult, an possesses full capacity for civil acts independently, whoever, a citizen between 16 to 18 whose income forms the main source of livelihood are considered to possess full capacity for legal acts. 
  A minor or a person who is mentally unsound and incapacity of discretion in his own actions, do not possess compete capacity for civil acts, and shall carry out their civil activities through their legal representatives.

Partnership between individuals
  A partnership is defined as a business entity formed by individuals operating in partnership in accordance with a partnership agreement, the partnership agreement contains the capital contribution, the distribution of profits, liability for debts, entry and withdrawal and termination.
Partners of a partnership are jointly and severally liable to a third party to the debts of the partnership unless is a limited liability partnership (LLP).   

Legal person 

  Unlike the natural person with blood and flesh, the legal person is an artificial person, an organization possessing capacity and competence for civil rights and obligations and independently enjoys the civil rights and assumes civil obligations.
  Organizations that satisfy the following conditions are regarded as legal persons:
a) It has been established according to law;
b) It possesses the necessary capital or property;
c) It has its own names, organizational structure and premise;
d) It is capable of independently bearing civil liability 
  In general, the legal persons come into existence the date the license issued by the SAIC. 

Civil Legal Act and Agency
  Civil legal right refers to the legitimate actions of a citizen or a legal person in establishing, modifying or terminating civil rights and civil obligations. It is artificial legal facts, which in fact constitute overwhelming majority of legal facts establishing, modifying or terminating legal relations. 
  All civil legal acts must possess the following conditions:
a) The actor possesses the appropriate capacity for such civil acts;
b) The intention shall be authentic;
c) The act shall not violate the law or the public interest

  The civil act may be declared to be void by the People’s Court or an arbitration authority in the following circumstances:
a) Acts conducted by the person lack of capacity for civil acts;
b) Acts that have been performed against the actor’s authentic intention such as deceit or duress, misunderstanding;
c) Acts which are performed in malicious collaboration, damaging the interests of the State or a third party;
d) Acts which violate the law;
e) Economic contract which violate mandatory state plans
f) Acts which conceal an illegal aim by acting in a lawful way

There are three types of agency according to China Civil Law, which are appointed agency, statutory agency and designated agency.
  The appointed agency is widely used in business, the appointed agent exercise the power of agency as entrusted by the principle, this kind of entrustment is usually effected by written power of attorney.
  The statutory agency is based on direct provision in law, for example, the parents shall represent the minor as its agent. The statutory agent exercises the power directly delegated by law. 
  The designated agency means the agent designated by court or relevant official organs. The scope of designated agency is relatively more specific and specialized.
  
  Civil rights (property rights and personal rights) 
  Property rights include real right, intellectual property, creditor’s right and inheritance right. The subject matter of real rights is movable or immovable things. Intangible things such as light, heat, electricity that can be controlled and used by human being may be the subject matter of real rights. Creditors’ rights is a right to demand that that a debtor shall fulfill its obligations in accordance with the stipulations of a contract or provisions of law. 
  Personal rights refers to the rights to life and to health. Generally speaking, personal rights includes the rights to a name, rights to life and health; rights to reputation and honor; rights to freedom and rights to family status.

Civil liability 
  According to the China Civil Law, a citizen or legal person who violates a contract or fails to fulfill the legal obligations or infringes upon other’s civil rights, shall assumes civil liability.
  If an agreement is breached by one party, the other party is entitled to demand performance or take remedial measures and to claim damages except the contract is unable to be performed or damages caused to another person due to force majeure. The liability for damages of a party in breach of contract shall correspond to the loss suffered by the non-breaching party. Parties to the contract may agree in the contract that if one party breaches the contract, it shall pay a fixed amount to the other party as a defaulting payment, however, the defaulting party may ask the People’s Court to reduce the claim amount if the agreed amount excess 30% over the losses.
   The civil law recognizes the concept of tort as an infringement on the rights of natural persons; the rights are referred to as property, intellectual Property, person, personal rights. etc. 
  The tort is categorized as General Tort and Special Tort,  special tort means that one should be liable for injuries or harms caused by other’s act, event, or special causes relating to him, such liability is ether non-default based, or presumed faulty, or for fairness purpose.
  In establishing a wrongdoer’s liability, the general tort requires four elements: damages, wrongful conduct, causation between them and fault of the wrongdoer, the special tort only require the first 3 elements.  
 There are ten methods to bear the civil liability:
a) Cessation of infringements; 
b) Removal of hindrance;
c) Elimination of the dangers;
d) Return of property;
e) Restoration of original condition;
f) Repair, remake or replacement;
g) Compensation for losses;
h) Default payment for liquidated damages;
i) Elimination of the effects and restoration of the reputation;
j) Offer of an apology
  







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