- •Table of Contents
- •Preface
- •Introduction
- •2. Economic Reform and Reconstruction of Legal System
- •3. Contract Law Legislation
- •4. Enactment of the General Principles of Civil Law
- •5. The Unified Contract Law
- •7. Unsolved Issue: Judicial Independence
- •1. Concept of Contract
- •1.1. Confucianism Tradition
- •1.2. Civil Law Influence
- •1.3. Theories of Contract Law
- •1.4. Definition of Contract
- •1.5. Application of the Contract Law
- •2. Contract and Socialist Market Economy
- •3. Contracts and State Plan
- •1. Conception of Freedom
- •2. Right of the Parties to Contract
- •3. Limitations on Party Autonomy – Bird in Cage
- •3.1. Legal Compliance
- •3.2. State Plan Mandate
- •3.3. Administrative Supervision
- •3.4. Government Approval and Other Special Requirements
- •1. Obligatio and Contract Obligations
- •2. Equality and Voluntariness
- •3. Fairness and Good Faith
- •4. Legality and Public Interests
- •5. Observance of Contract
- •6. Pre-contractual Liability
- •1. Offer
- •1.1. Offer and Invitation for Offer
- •1.2. Legal Effect of Offer
- •1.3. Termination of Offer
- •2. Acceptance
- •2.1. Requirements for Acceptance
- •2.2. Withdrawal of Acceptance
- •2.3. Late Acceptance
- •2.4. Late Arrival of Acceptance
- •2.5. Acceptance and Conclusion of Contract
- •3. Conclusion of Contract and Effectiveness of Contract
- •4. Formality of Contract
- •5. Incorporation of the State Plan and Government Approval
- •1. Terms Generally Included in a Contract
- •2. Interpretation of Contract
- •2.1. Contract Interpretation Approaches
- •2.2. Contract Interpretation Rules
- •2.3. Contract Interpretation under the Contract Law
- •2.4. Supplementary Agreement for Uncertain or Missing Terms
- •2.5. Proof of the Terms of the Contract – No Parol Evidence
- •3. Standard Terms
- •4. Disclaimers
- •1. Issues at Stake – Specially Addressed in the Contract Law
- •2. Capacity to Contract – Effect-to-be-Determined Contract
- •2.1. Contract by a Person with Limited Civil Capacity
- •2.2. Contract by Agent without Authorization
- •2.3. Right to Request Ratification or to Rescind Contract
- •2.4. No Right to Dispose
- •3. Void Contracts
- •3.1. Fraud or Duress
- •3.2. Malicious Collusion to Damage the Interests of the State, a Collective or a Third Party
- •3.3. Use of Contract for Illegal Purpose
- •3.4. Harm to the Social Public Interest
- •3.5. Violation of Compulsory Provisions of Law or Regulations
- •4. Voidable Contracts
- •4.2. Material Misunderstanding
- •4.3. Obvious Unfairness
- •5. Consequences of Void and Voidable Contracts
- •5.1. Avoidance from Very Beginning
- •5.2. Partial Avoidance not Affecting the Remaining Part of the Contract
- •5.3. Independence of Dispute Settlement Clause
- •5.4. Restitution and Compensation
- •6. Conditions Affecting the Validity of Contacts
- •1. Complete and Adequate Performance
- •2. Good Faith Performance
- •3. Determination of Obligations to be Performed
- •4. Right of Defense to Non-Performance
- •4.1. Fulfillment Plea
- •4.2. Unrest Defense
- •5. Protective Measures for Performance
- •5.1. Right of Subrogation
- •5.2. Right of Cancellation
- •6. Guarantee of Performance
- •6.1. Suretyship
- •6.2. Security Interest
- •6.3. Money Deposit
- •6.4. Lien
- •7. Changes of Circumstances During Performance
- •7.1. Change related the Parties
- •7.2. Rebus Sic Stantibus
- •1. Modification
- •2. Assignment
- •2.2. Delegation of Contractual Obligations
- •2.3. Comprehensive Assignment
- •1. Dissolution
- •1.1. Dissolution by Agreement
- •1.2. Dissolution by Provision of Law
- •1.3. Dissolution for Other Reasons Provided by Law
- •1.4. Legal Consequences of Dissolution
- •2. Termination
- •2.1. Termination by Performance
- •2.2. Termination by Offset
- •2.3. Termination by Deposit
- •2.4. Termination by Exemption
- •2.5. Termination by Assumption of Contractual Rights and Obligations
- •1. Liability for Breach: A Chinese Concept
- •2. Liability Imputation: Fault vs. Strict Liability
- •3. Breach
- •4. Remedies
- •4.1. Continuing Performance
- •4.2. Remedial Measures
- •4.3. Damages
- •5. Mitigation Duty
- •6. Exemption of Liability
- •1. Third Party Receiving Performance
- •2. Third Party Performing the Contract
- •3. Breach Caused by Third Party
- •4. Bona Fide Third Party
- •1. Choice of Law in International Contracts
- •1.1. Choice of Law by the parties
- •1.3. Application of International Law
- •2. Choice of Forum in International Contracts
- •3. Dispute Settlement Mechanism
- •3.1. Reconciliation
- •3.2. Mediation
- •3.3. Arbitration
- •3.4. Litigation
- •4. Statute of Limitations
- •Index
Chinese Contract Law
CHINESE
CONTRACT LAW
Theory and Practice
by Mo Zhang
Martinus Nijhoff Publishers
Leiden / Boston
A C.I.P record for this book is available from the Library of Congress.
Printed on acid-free paper.
ISBN 90-04-15041-2
© 2006 Koninklijke Brill NV, Leiden, The Netherlands
Koninklijke Brill NV incorporates the imprints Brill Academic Publishers, Martinus Nijhoff Publishers, and VSP.
http://www.brill.nl
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without prior written permission from the Publisher.
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Fees are subject to change.
PRINTED AND BOUND IN THE NETHERLANDS
Table of Contents
Preface |
ix |
|
Acknowledgement |
xv |
|
Introduction |
1 |
|
1. |
Chairman Mao’s “Plain Paper” Theory and Legal Vacuum in China |
2 |
2. |
Economic Reform and Reconstruction of Legal System |
5 |
3. |
Contract Law Legislation |
7 |
4. |
Enactment of the General Principles of Civil Law |
9 |
5. |
The Unified Contract Law |
11 |
6. |
Adoption of the Ideology of “Governing the Country by Law” |
14 |
7. |
Unsolved Issue: Judicial Independence |
15 |
Chapter I Contract Law in Chinese Tradition |
25 |
|
1. |
Concept of Contract |
26 |
|
1.1. Confucianism Tradition |
27 |
|
1.2. Civil Law Influence |
28 |
|
1.3. Theories of Contract Law |
31 |
|
1.4. Definition of Contract |
34 |
|
1.5. Application of the Contract Law |
40 |
2. |
Contract and Socialist Market Economy |
43 |
3. |
Contracts and State Plan |
47 |
Chapter II Freedom of Contract in Chinese Concept |
51 |
|
1. |
Conception of Freedom |
54 |
2. |
Right of the Parties to Contract |
56 |
3. |
Limitations on Party Autonomy – Bird in Cage |
59 |
|
3.1. Legal Compliance |
61 |
|
3.2. State Plan Mandate |
62 |
|
3.3. Administrative Supervision |
62 |
|
3.4. Government Approval and Other Special Requirements |
64 |
Chapter III Enforceability of Contracts |
67 |
|
1. |
Obligatio and Contract Obligations |
70 |
2. |
Equality and Voluntariness |
72 |
3. |
Fairness and Good Faith |
74 |
4. |
Legality and Public Interests |
80 |
5. |
Observance of Contract |
83 |
6. |
Pre-contractual Liability |
84 |
vi |
Table of Contents |
|
||
|
|
|
|
|
Chapter IV |
Formation of Contracts |
91 |
||
1. |
Offer |
|
|
92 |
|
1.1. Offer and Invitation for Offer |
94 |
||
|
1.2. Legal Effect of Offer |
99 |
||
|
1.3. Termination of Offer |
100 |
||
2. |
Acceptance |
103 |
||
|
2.1. Requirements for Acceptance |
104 |
||
|
2.2. Withdrawal of Acceptance |
107 |
||
|
2.3. Late Acceptance |
108 |
||
|
2.4. Late Arrival of Acceptance |
108 |
||
|
2.5. Acceptance and Conclusion of Contract |
109 |
||
3. |
Conclusion of Contract and Effectiveness of Contract |
111 |
||
4. |
Formality of Contract |
112 |
||
5. |
Incorporation of the State Plan and Government Approval |
120 |
||
Chapter V Terms of Contracts |
121 |
|||
1. |
Terms Generally Included in a Contract |
122 |
||
2. |
Interpretation of Contract |
125 |
||
|
2.1. Contract Interpretation Approaches |
126 |
||
|
2.2. Contract Interpretation Rules |
128 |
||
|
2.3. Contract Interpretation under the Contract Law |
129 |
||
|
2.4. Supplementary Agreement for Uncertain or Missing Terms |
132 |
||
|
2.5. Proof of the Terms of the Contract – No Parol Evidence |
136 |
||
3. |
Standard Terms |
138 |
||
4. |
Disclaimers |
144 |
||
Chapter VI |
Defenses to Formation of Contracts – Validity Issues |
147 |
||
1. |
Issues at Stake – Specially Addressed in the Contract Law |
150 |
||
2. |
Capacity to Contract – Effect-to-be-Determined Contract |
154 |
||
|
2.1. Contract by a Person with Limited Civil Capacity |
157 |
||
|
2.2. Contract by Agent without Authorization |
158 |
||
|
2.3. Right to Request Ratification or to Rescind Contract |
163 |
||
|
2.4. No Right to Dispose |
164 |
||
3. |
Void Contracts |
167 |
||
|
3.1. Fraud or Duress |
169 |
||
|
3.2. Malicious Collusion to Damage the Interests of the State, |
|
||
|
a Collective or a Third Party |
178 |
||
|
3.3. Use of Contract for Illegal Purpose |
179 |
||
|
3.4. Harm to the Social Public Interest |
180 |
||
|
3.5. Violation of Compulsory Provisions of Law or Regulations |
181 |
||
4. |
Voidable Contracts |
183 |
||
|
4.1. Exploitation of the Other Party’s Precarious Position |
184 |
||
|
4.2. Material Misunderstanding |
185 |
||
|
4.3. Obvious Unfairness |
188 |
|
|
|
Table of Contents |
vii |
|
|
|
|
|
5. |
Consequences of Void and Voidable Contracts |
191 |
||
|
5.1. Avoidance from Very Beginning |
191 |
||
|
5.2. Partial Avoidance not Affecting the Remaining Part of the Contract |
192 |
||
|
5.3. Independence of Dispute Settlement Clause |
192 |
||
|
5.4. Restitution and Compensation |
193 |
||
6. |
Conditions Affecting the Validity of Contacts |
195 |
||
Chapter VII |
Performance of Contracts |
199 |
||
1. |
Complete and Adequate Performance |
200 |
||
2. |
Good Faith Performance |
201 |
||
3. |
Determination of Obligations to be Performed |
205 |
||
4. |
Right of Defense to Non-Performance |
207 |
||
|
4.1. Fulfillment Plea |
208 |
||
|
4.2. Unrest Defense |
211 |
||
5. |
Protective Measures for Performance |
213 |
||
|
5.1. Right of Subrogation |
214 |
||
|
5.2. Right of Cancellation |
218 |
||
6. |
Guarantee of Performance |
224 |
||
|
6.1. Suretyship |
224 |
||
|
6.2. Security Interest |
225 |
||
|
6.3. Money Deposit |
226 |
||
|
6.4. Lien |
226 |
||
7. |
Changes of Circumstances During Performance |
227 |
||
|
7.1. Change related the Parties |
227 |
||
|
7.2. Rebus Sic Stantibus |
227 |
||
Chapter VIII |
Modification of Contracts and Assignment |
231 |
||
1. |
Modification |
231 |
||
2. |
Assignment |
234 |
||
|
2.1. Assignment of Contractual Right |
238 |
||
|
2.2. Delegation of Contractual Obligations |
246 |
||
|
2.3. Comprehensive Assignment |
254 |
||
Chapter IX |
Dissolution and Termination of Contracts |
257 |
||
1. |
Dissolution |
258 |
||
|
1.1. Dissolution by Agreement |
258 |
||
|
1.2. Dissolution by Provision of Law |
261 |
||
|
1.3. Dissolution for Other Reasons Provided by Law |
267 |
||
|
1.4. Legal Consequences of Dissolution |
270 |
||
2. |
Termination |
273 |
||
|
2.1. Termination by Performance |
275 |
||
|
2.2. Termination by Offset |
276 |
||
|
2.3. Termination by Deposit |
278 |
||
|
2.4. Termination by Exemption |
284 |
||
|
2.5. Termination by Assumption of Contractual Rights and Obligations |
286 |
viii |
Table of Contents |
|
||
|
|
|
||
Chapter X Breach of Contracts and Remedies |
289 |
|||
1. |
Liability for Breach: A Chinese Concept |
289 |
||
2. |
Liability Imputation: Fault vs. Strict Liability |
290 |
||
3. |
Breach |
|
|
294 |
4. |
Remedies |
296 |
||
|
4.1. Continuing Performance |
296 |
||
|
4.2. Remedial Measures |
303 |
||
|
4.3. Damages |
305 |
||
5. |
Mitigation Duty |
312 |
||
6. |
Exemption of Liability |
313 |
||
Chapter XI |
Third Parties |
315 |
||
1. |
Third Party Receiving Performance |
317 |
||
2. |
Third Party Performing the Contract |
320 |
||
3. |
Breach Caused by Third Party |
322 |
||
4. |
Bona Fide Third Party |
324 |
||
Chapter XII |
International Contracts |
327 |
||
1. |
Choice of Law in International Contracts |
328 |
||
|
1.1. Choice of Law by the parties |
329 |
||
|
1.2. Application of Law Absent the Parties’ Choice |
337 |
||
|
1.3. Application of International Law |
339 |
||
2. |
Choice of Forum in International Contracts |
345 |
||
3. |
Dispute Settlement Mechanism |
349 |
||
|
3.1. Reconciliation |
350 |
||
|
3.2. Mediation |
351 |
||
|
3.3. Arbitration |
353 |
||
|
3.4. Litigation |
356 |
||
4. |
Statute of Limitations |
356 |
||
Index |
|
|
361 |