摘要：
【标 题】 CONTRACT LAW OF THE PEOPLE'S REPUBLIC OF CHINA
【分 类】
【时 效 性】 有效
【颁布时间】 1999.03.15
【实施时间】 1999.10.01
【发布部门】 National People’s Congress
CONTRACT LAW OF THE PEOPLE'S REPUBLIC OF CHINA
(Adopted and Promulgated by the Second Session of the Ninth National People's Congress March 15, 1999)
正文：
GENERAL PRINCIPLES
Chapter One General Provisions
Article 1 Purpose
This Law is formulated in order to protect the lawful rights and interests of
contract parties, to safeguard social and economic order, and to promote
socialist modernization.
Article 2 Definition of Contract; Exclusions
For purposes of this Law, a contract is an agreement between natural persons,
legal persons or other organizations with equal standing, for the purpose of
establishing, altering, or discharging a relationship of civil rights and
obligations.
An agreement concerning any personal relationship such as marriage, adoption,
guardianship, etc. shall be governed by other applicable laws.
Article 3 Equal Standing of Parties
Contract parties enjoy equal legal standing and neither party may impose its
will on the other party.
Article 4 Right to Enter into Contract Voluntarily
A party is entitled to enter into a contract voluntarily under the law, and no
entity or individual may unlawfully interfere with such right.
Article 5 Fairness
The parties shall abide by the principle of fairness in prescribing their
respective rights and obligations.
Article 6 Good Faith
The parties shall abide by the principle of good faith in exercising their
rights and performing their obligations.
Article 7 Legality
In concluding or performing a contract, the parties shall abide by the relevant
laws and administrative regulations, as well as observe social ethics, and may
not disrupt social and economic order or harm the public interests.
Article 8 Binding Effect; Legal Protection
A lawfully formed contract is legally binding on the parties. The parties shall
perform their respective obligations in accordance with the contract, and
neither party may arbitrarily amend or terminate the contract.
A lawfully formed contract is protected by law.
Chapter Two Formation of Contracts
Article 9 Capacity; Contract through Agent
In entering into a contract, the parties shall have the appropriate capacities
for civil rights and civil acts.
A party may appoint an agent to enter into a contract on its behalf under the
law.
Article 10 Forms of Contract; Writing Requirement
A contract may be made in a writing, in an oral conversation, as well as in any
other form.
A contract shall be in writing if a relevant law or administrative regulation so
requires. A contract shall be in writing if the parties have so agreed.
Article 11 Definition of Writing
A writing means a memorandum of contract, letter or electronic message
(including telegram, telex, facsimile, electronic data exchange and electronic
mail), etc. which is capable of expressing its contents in a tangible form.
Article 12 Terms of Contract
The terms of a contract shall be prescribed by the parties, and generally
include the following:
(i) names of the parties and the domiciles thereof;
(ii) subject matter;
(iii) quantity;
(iv) quality;
(v) price or remuneration;
(vi) time, place and method of performance;
(vii) liabilities for breach of contract;
(viii) method of dispute resolution.
The parties may enter into a contract by referencing a model contract for the
relevant contract category.
Article 13 Offer-Acceptance
A contract is concluded by the exchange of an offer and an acceptance.
Article 14 Definition of Offer
An offer is a party's manifestation of intention to enter into a contract with
the other party, which shall comply with the following:
(i) Its terms are specific and definite;
(ii) It indicates that upon acceptance by the offeree, the offeror will be bound
thereby.
Article 15 Invitation to Offer
An invitation to offer is a party's manifestation of intention to invite the
other party to make an offer thereto. A delivered price list, announcement of
auction, call for tender, prospectus, or commercial advertisement, etc. is an
invitation to offer.
A commercial advertisement is deemed an offer if its contents meet the
requirements of an offer.
Article 16 Effectiveness of Offer, Offer through Electronic Message
An offer becomes effective when it reaches the offeree.
When a contract is concluded by the exchange of electronic messages, if the
recipient of an electronic message has designated a specific system to receive
it, the time when the electronic message enters into such specific system is
deemed its time of arrival; if no specific system has been designated, the time
when the electronic message first enters into any of the recipient's systems is
deemed its time of arrival.
Article 17 Withdrawal of Offer
An offer may be withdrawn. The notice of withdrawal shall reach the offeree
before or at the same time as the offer.
Article 18 Revocation of Offer
An offer may be revoked. The notice of revocation shall reach the offeree before
it has dispatched a notice of acceptance.
Article 19 Irrevocable Offer
An offer may not be revoked:
(i) if it expressly indicates, whether by stating a fixed time for acceptance or
otherwise, that it is irrevocable;
(ii) if the offeree has reason to regard the offer as irrevocable, and has
undertaken preparation for performance.
Article 20 Extinguishment of Offer
An offer is extinguished in any of the following circumstances:
(i) The notice of rejection reaches the offeror;
(ii) The offeror lawfully revokes the offer;
(iii) The offeree fails to dispatch its acceptance at the end of the period for
acceptance;
(iv) The offeree makes a material change to the terms of the offer.
Article 21 Definition of Acceptance
An acceptance is the offeree's manifestation of intention to assent to an offer.
Article 22 Mode of Acceptance; Acceptance by Conduct
An acceptance shall be manifested by notification, except where it may be
manifested by conduct in accordance with the relevant usage or as indicated in
the offer.
Article 23 Timely Dispatch of Acceptance
An acceptance shall reach the offeror within the period prescribed in the offer.
Where the offer does not prescribe a period for acceptance, the acceptance shall
reach the offeror as follows:
(i) Where the offer is made orally, the acceptance shall be dispatched
immediately, unless otherwise agreed by the parties;
(ii) Where the offer is made in a non-oral manner, the acceptance shall reach
the offeror within a reasonable time.
Article 24 Commencement of the Period for Acceptance
Where an offer is made by a letter or a telegram, the period for acceptance
commences on the date shown on the letter or the date on which the telegram is
handed in for dispatch. If the letter does not specify a date, the period
commences on the posting date stamped on the envelop. Where the offer is made
through an instantaneous communication device such as telephone or facsimile,
etc., the period for acceptance commences once the offer reaches the offeree.
Article 25 Contract Formed upon Effectiveness of Acceptance
A contract is formed once the acceptance becomes effective.
Article 26 Effectiveness of Acceptance
A notice of acceptance becomes effective once it reaches the offeror. Where the
acceptance does not require notification, it becomes effective once an act of
acceptance is performed in accordance with the relevant usage or as required by
the offer.
Where a contract is concluded by the exchange of electronic messages, the time
of arrival of the acceptance shall be governed by Paragraph 2 of Article 16
hereof.
Article 27 Withdrawal of Acceptance
An acceptance may be withdrawn. The notice of withdrawal shall reach the offeror
before or at the same time as the acceptance.
Article 28 Late Acceptance
An acceptance dispatched by the offeree after expiration of the period for
acceptance constitutes a new offer, unless the offeror timely advises the
offeree that the acceptance is valid.
Article 29 Delayed Transmission of Acceptance
If the offeree dispatched its acceptance within the period for acceptance, and
the acceptance, which would otherwise have reached the offeror in due time under
normal circumstances, reaches the offeror after expiration of the period for
acceptance due to any other reason, the acceptance is valid, unless the offeror
timely advises the offeree that the acceptance has been rejected on grounds of
the delay.
Article 30 Acceptance Containing Material Change
The terms of the acceptance shall be identical to those of the offer. A
purported acceptance dispatched by the offeree which materially alters the terms
of the offer constitutes a new offer. A change in the subject matter, quantity,
quality, price or remuneration, time, place and method of performance,
liabilities for breach of contract or method of dispute resolution is a material
change to the terms of the offer.
Article 31 Acceptance Containing Non-material Changes
An acceptance containing nonmaterial changes to the terms of the offer is
nevertheless valid and the terms thereof prevail as the terms of the contract,
unless the offeror timely objects to such changes or the offer indicated that
acceptance may not contain any change to the terms thereof.
Article 32 Time of Formation in Case of Memorandum of Contract
Where the parties enter into a contract by a memorandum of contract, the
contract is formed when it is signed or sealed by the parties.
Article 33 Time of Formation in Case of Letters or Electronic Messages;
Confirmation Letter
Where the parties enter into a contract by the exchange of letters or electronic
messages, one party may require execution of a confirmation letter before the
contract is formed. The contract is formed upon execution of the confirmation
letter.
Article 34 Place of Formation; Electronic Messages
The place where the acceptance becomes effective is the place of formation of a
contract.
Where a contract is concluded by the exchange of electronic messages, the
recipient's main place of business is the place of formation of the contract; if
the recipient does not have a main place of business, its habitual residence is
the place of formation of the contract. If the parties have agreed otherwise,
such agreement prevails.
Article 35 Place of Formation in Case of Memorandum of Contract
Where a contract is concluded by a memorandum of contract, its place of
formation is the place where the parties sign or seal the contract.
Article 36 Effect of Failure to Conclude Contract in Writing
Where a contract is to be concluded by a writing as required by the relevant law
or administrative regulation or as agreed by the parties, if the parties failed
to conclude the contract in writing but one party has performed its main
obligation and the other party has accepted the performance, the contract is
formed.
Article 37 Effect of Failure to Sign in Case of Memorandum of Contract
Where a contract is to be concluded by a memorandum of contract, if prior to
signing or sealing of the contract, one party has performed its main obligation
and the other party has accepted the performance, the contract is formed.
Article 38 Contract under State Mandatory Plan
Where the state has, in light of its requirements, issued a mandatory plan or
state purchase order, the relevant legal persons and other organizations shall
enter into a contract based on the rights and obligations of the parties
prescribed by the relevant laws and administrative regulations.
Article 39 Standard Terms; Duty to Call Attention
Where a contract is concluded by way of standard terms, the party supplying the
standard terms shall abide by the principle of fairness in prescribing the
rights and obligations of the parties and shall, in a reasonable manner, call
the other party's attention to the provision(s) whereby such party's liabilities
are excluded or limited, and shall explain such provision(s) upon request by the
other party.
Standard terms are contract provisions which were prepared in advance by a party
for repeated use, and which are not negotiated with the other party in the
course of concluding the contract.
Article 40 Invalidity of Certain Standard Terms
A standard term is invalid if it falls into any of the circumstances set forth
in Article 52 and Article 53 hereof, or if it excludes the liabilities of the
party supplying such term, increases the liabilities of the other party, or
deprives the other party of any of its material rights.
Article 41 Dispute Concerning Construction of Standard Term
In case of any dispute concerning the construction of a standard term, such term
shall be interpreted in accordance with common sense. If the standard term is
subject to two or more interpretations, it shall be interpreted against the
party supplying it. If a discrepancy exists between the standard term and a
non-standard term, the non-standard term prevails.
Article 42 Pre-contract Liabilities
Where in the course of concluding a contract, a party engaged in any of the
following conducts, thereby causing loss to the other party, it shall be liable
for damages:
(i) negotiating in bad faith under the pretext of concluding a contract;
(ii) intentionally concealing a material fact relating to the conclusion of the
contract or supplying false information;
(iii) any other conduct which violates the principle of good faith.
Article 43 Trade Secrets; Liability for Disclosure or Improper Use
A party may not disclose or improperly use any trade secret which it became
aware of in the course of negotiating a contract, regardless of whether a
contract is formed. If the party disclosed or improperly used such trade secret,
thereby causing loss to the other party, it shall be liable for damages.
Chapter Three Validity of Contracts
Article 44 Effectiveness of Contract
A lawfully formed contract becomes effective upon its formation.
Where effectiveness of a contract is subject to any procedure such as approval
or registration, etc. as required by a relevant law or administrative
regulation, such provision applies.
Article 45 Conditions Precedent; Conditions Subsequent; Improper Impairment or
Facilitation
The parties may prescribe that effectiveness of a contract be subject to certain
conditions. A contract subject to a condition precedent becomes effective once
such condition is satisfied. A contract subject to a condition subsequent is
extinguished once such condition is satisfied.
Where in order to further its own interests, a party improperly impaired the
satisfaction of a condition, the condition is deemed to have been satisfied;
where a party improperly facilitated the satisfaction of a condition, the
condition is deemed not to have been satisfied.
Article 46 Contract Term
The parties may prescribe a term for a contract. A contract subject to a time of
commencement becomes effective at such time. A contract subject to a time of
expiration is extinguished at such time.
Article 47 Contract by Person with Limited Capacity
A contract concluded by a person with limited capacity for civil act is valid
upon ratification by the legal agent thereof, provided that a contract from
which such person accrues benefits only or the conclusion of which is
appropriate for his age, intelligence or mental health does not require
ratification by his legal agent.
The other party may demand that the legal agent ratify the contract within one
month. If the legal agent fails to manifest his intention, he is deemed to have
declined to ratify the contract. Prior to ratification of the contract, the
other party in good faith is entitled to cancel the contract. Cancellation shall
be effected by notification.
Article 48 Contract by Unauthorized Agent
Absent ratification by the principal, a contract concluded on his behalf by a
person who lacked agency authority, who acted beyond his agency authority or
whose agency authority was extinguished is not binding upon the principal unless
ratified by him, and the person performing such act is liable.
The other party may demand that the principal ratify the contract within one
month. Where the principal fails to manifest his intention, he is deemed to have
declined to ratify the contract. Prior to ratification of the contract, the
other party in good faith is entitled to cancel the contract. Cancellation shall
be effected by notification.
Article 49 Contract by Person with Apparent Agency Authority
Where the person lacking agency authority, acting beyond his agency authority,
or whose agency authority was extinguished concluded a contract in the name of
the principal, if it was reasonable for the other party to believe that the
person performing the act had agency authority, such act of agency is valid.
Article 50 Contract Executed by Legal Representative
Where the legal representative or the person-in-charge of a legal person or an
organization of any other nature entered into a contract acting beyond his scope
of authority, unless the other party knew or should have known that he was
acting beyond his scope of authority, such act of representation is valid.
Article 51 Unauthorized Disposal of Property through Contract
Where a piece of property belonging to another person was disposed of by a
person without the power to do so, such contract is nevertheless valid once the
person with the power to its disposal has ratified the contract, or if the
person lacking the power to dispose of it when the contract was concluded has
subsequently acquired such power.
Article 52 Invalidating Circumstances
A contract is invalid in any of the following circumstances:
(i) One party induced conclusion of the contract through fraud or duress,
thereby harming the interests of the state;
(ii) The parties colluded in bad faith, thereby harming the interests of the
state, the collective or any third party;
(iii) The parties intended to conceal an illegal purpose under the guise of a
legitimate transaction;
(iv) The contract harms public interests;
(v) The contract violates a mandatory provision of any law or administrative
regulation.
Article 53 Invalidity of Certain Exculpatory Provisions
The following exculpatory provisions in a contract are invalid:
(i) excluding one party's liability for personal injury caused to the other
party;
(ii) excluding one party's liability for property loss caused to the other party
by its intentional misconduct or gross negligence.
Article 54 Contract Subject to Amendment or Cancellation
Either of the parties may petition the People's Court or an arbitration
institution for amendment or cancellation of a contract if:
(i) the contract was concluded due to a material mistake;
(ii) the contract was grossly unconscionable at the time of its conclusion.
If a party induced the other party to enter into a contract against its true
intention by fraud or duress, or by taking advantage of the other party's
hardship, the aggrieved party is entitled to petition the People's Court or an
arbitration institution for amendment or cancellation of the contract.
Where a party petitions for amendment of the contract, the People's Court or
arbitration institution may not cancel the contract instead.
Article 55 Extinguishment of Cancellation Right
A party's cancellation right is extinguished in any of the following
circumstances:
(i) It fails to exercise the cancellation right within one year, commencing on
the date when the party knew or should have known the cause for the
cancellation;
(ii) Upon becoming aware of the cause for cancellation, it waives the
cancellation right by express statement or by conduct.
Article 56 Effect of Invalidation or Cancellation; Partial Invalidation or
Cancellation
An invalid or canceled contract is not legally binding ab initio. Where a
contract is partially invalid, and the validity of the remaining provisions
thereof is not affected as a result, the remaining provisions are nevertheless
valid.
Article 57 Independence of Dispute Resolution Provision
The invalidation, cancellation or discharge of a contract does not impair the
validity of the contract provision concerning the method of dispute resolution,
which exists independently in the contract.
Article 58 Remedies in Case of Invalidation or Cancellation
After a contract was invalidated or canceled, the parties shall make restitution
of any property acquired thereunder; where restitution in kind is not possible
or necessary, allowance shall be made in money based on the value of the
property. The party at fault shall indemnify the other party for its loss
sustained as a result. Where both parties were at fault, the parties shall bear
their respective liabilities accordingly.
Article 59 Remedies in Case of Collusion in Bad Faith
Where the parties colluded in bad faith, thereby harming the interests of the
state, the collective or a third person, any property acquired as a result shall
be turned over to the state or be returned to the collective or the third
person.
Chapter Four Performance of Contracts
Article 60 Full Performance; Performance in Good Faith
The parties shall fully perform their respective obligations in accordance with
the contract.
The parties shall abide by the principle of good faith, and perform obligations
such as notification, assistance, and confidentiality, etc. in light of the
nature and purpose of the contract and in accordance with the relevant usage.
Article 61 Indeterminate Terms; Supplementary Agreement
If a term such as quality, price or remuneration, or place of performance etc.
was not prescribed or clearly prescribed, after the contract has taken effect,
the parties may supplement it through agreement; if the parties fail to reach a
supplementary agreement, such term shall be determined in accordance with the
relevant provisions of the contract or in accordance with the relevant usage.
Article 62 Gap Filling
Where a relevant term of the contract was not clearly prescribed, and cannot be
determined in accordance with Article 61 hereof, one of the following provisions
applies:
(i) If quality requirement was not clearly prescribed, performance shall be in
accordance with the state standard or industry standard; absent any state or
industry standard, performance shall be in accordance with the customary
standard or any particular standard consistent with the purpose of the contract;
(ii) If price or remuneration was not clearly prescribed, performance shall be
in accordance with the prevailing market price at the place of performance at
the time the contract was concluded, and if adoption of a price mandated by the
government or based on government issued pricing guidelines is required by law,
such requirement applies;
(iii) Where the place of performance was not clearly prescribed, if the
obligation is payment of money, performance shall be at the place where the
payee is located; if the obligation is delivery of immovable property,
performance shall be at the place where the immovable property is located; for
any other subject matter, performance shall be at the place where the obligor is
located;
(iv) If the time of performance was not clearly prescribed, the obligor may
perform, and the obligee may require performance, at any time, provided that the
other party shall be given the time required for preparation;
(v) If the method of performance was not clearly prescribed, performance shall
be rendered in a manner which is conducive to realizing the purpose of the
contract;
(vi) If the party responsible for the expenses of performance was not clearly
prescribed, the obligor shall bear the expenses.
Article 63 Performance at Government Mandated Price
Where a contract is to be implemented at a price mandated by the government or
based on government issued pricing guidelines, if the government adjusts the
price during the prescribed period of delivery, the contract price shall be the
price at the time of delivery. Where a party delays in delivering the subject
matter, the original price applies if the price has increased, and the new price
applies if the price has decreased. Where a party delays in taking delivery or
making payment, the new price applies if the price has increased, and the
original price applies if the price has decreased.
Article 64 Performance toward a Third Person
Where the parties prescribed that the obligor render performance to a third
person, if the obligor fails to render its performance to the third person, or
rendered non-conforming performance, it shall be liable to the obligee for
breach of contract.
Article 65 Performance by a Third Person
Where the parties prescribed that a third person render performance to the
obligee, if the third person fails to perform or rendered non-conforming
performance, the obligor shall be liable to the obligee for breach of contract.
Article 66 Simultaneous Performance
Where the parties owe performance toward each other and there is no order of
performance, the parties shall perform simultaneously. Prior to performance by
the other party, one party is entitled to reject its requirement for
performance. If the other party rendered non-conforming performance, one party
is entitled to reject its corresponding requirement for performance.
Article 67 Consecutive Performance
Where the parties owe performance toward each other and there is an order of
performance, prior to performance by the party required to perform first, the
party who is to perform subsequently is entitled to reject its requirement for
performance. If the party required to perform first rendered non-conforming
performance, the party who is to perform subsequently is entitled to reject its
corresponding requirement for performance.
Article 68 Right to Suspend Performance
The party required to perform first may suspend its performance if it has
conclusive evidence establishing that the other party is in any of the following
circumstances:
(i) Its business has seriously deteriorated;
(ii) It has engaged in transfer of assets or withdrawal of funds for the purpose
of evading debts;
(iii) It has lost its business creditworthiness;
(iv) It is in any other circumstance which will or may cause it to lose its
ability to perform.
Where a party suspends performance without conclusive evidence, it shall be
liable for breach of contract.
Article 69 Notification upon Suspension of Performance; Termination
If a party suspends its performance in accordance with Article 68 hereof, it
shall timely notify the other party.
If the other party provides appropriate assurance for its performance, the party
shall resume performance. After performance was suspended, if the other party
fails to regain its ability to perform and fails to provide appropriate
assurance within a reasonable time, the suspending party may terminate the
contract.
Article 70 Difficulty in Rendering Performance Due to Combination
Where after effecting combination, division, or change of domicile, the obligee
failed to notify the obligor, thereby making it difficult to render performance,
the obligor may suspend its performance or place the subject matter in escrow.
Article 71 Right to Reject Early Performance; Exception
The obligee may reject the obligor's early performance, except where such early
performance does not harm the obligee's interests.
Any additional expense incurred by the obligee due to the obligor's early
performance shall be borne by the obligor.
Article 72 Right to Reject Partial Performance; Exception
An obligee may reject the obligor's partial performance, except where such
partial performance does not harm the obligee's interests.
Any additional expense incurred by the obligee due to the obligor's partial
performance shall be borne by the obligor.
Article 73 Subrogation; Limitation
Where the obligor delayed in exercising its creditor's right against a third
person that was due, thereby harming the obligee, the obligee may petition the
People's Court for subrogation, except where such creditor's right is
exclusively personal to the obligor.
The scope of subrogation is limited to the extent of the obligee's right to
performance. The necessary expenses for subrogation by the obligee shall be
borne by the obligor.
Article 74 Obligee's Right to Cancel Manifestly Unreasonable Act by Obligor
Where the obligor waived its creditor's right against a third person that was
due or assigned its property without reward, thereby harming the obligee, the
obligee may petition the People's Court for cancellation of the obligor's act.
Where the obligor assigned its property at a low price which is manifestly
unreasonable, thereby harming the obligee, and the assignee was aware of the
situation, the obligee may also petition the People's Court for cancellation of
the obligor's act.
The scope of cancellation right is limited to the extent of the obligee's right
to performance. The necessary expenses for the obligee's exercise of its
cancellation right shall be borne by the obligor.
Article 75 Time Limit for Exercising Obligee's Cancellation Right
The obligee's cancellation right shall be exercised within one year, commencing
on the date when it became, or should have become, aware of the cause for
cancellation. Such cancellation right is extinguished if not exercised within
five years, commencing on the date of occurrence of the obligor's act.
Article 76 A Party's Internal Change Not Excuse for Nonperformance
Once a contract becomes effective, a party may not refuse to perform its
obligations thereunder on grounds of any change in its name or change of its
legal representative, person in charge, or the person handling the contract.
Chapter Five Amendment and Assignment of Contracts
Article 77 Amendment; Amendment Subject to Approval
A contract may be amended if the parties have so agreed.
Where amendment to the contract is subject to any procedure such as approval or
registration, etc. as required by a relevant law or administrative regulation,
such provision applies.
Article 78 Ambiguous Amendment Not Effective
A contract term is construed not to have been amended if the parties failed to
clearly prescribe the terms of the amendment.
Article 79 Assignment of Rights; Exceptions
The obligee may assign its rights under a contract in whole or in part to a
third person, except where such assignment is prohibited:
(i) in light of the nature of the contract;
(ii) by agreement between the parties;
(iii) by law.
Article 80 Duty to Notify When Assigning Rights; Revocation of Assignment
Subject to Assignee's Consent
Where the obligee assigns its rights, it shall notify the obligor. Such
assignment is not binding upon the obligor if notice was not given.
A notice of assignment of rights given by the obligee may not be revoked, except
with the consent of the assignee.
Article 81 Assumption of Incidental Right in Case of Assignment
Where the obligee assigns a right, the assignee shall assume any incidental
right associated with the obligee's right, except where such incidental right is
exclusively personal to the obligee.
Article 82 Assigned Rights Subject to Accrued Defenses of Obligor
Upon receipt of the notice of assignment of the obligee's right, the obligor
may, in respect of the assignee, avail itself of any defense it has against the
assignor.
Article 83 Availability of Set-off to Obligor
Upon receipt of the notice of assignment of the obligee's right, if the obligor
has any right to performance by the assignor which is due before or at the same
time as the assigned obligee's right, the obligor may avail itself of any
set-off against the assignee.
Article 84 Delegation of Obligations Subject to Consent by Obligee
Where the obligor delegates its obligations under a contract in whole or in part
to a third person, such delegation is subject to consent by the obligee.
Article 85 Availability of Defenses to New Obligor
Where the obligor has delegated an obligation, the new obligor may avail itself
of any of the original obligor's defenses against the obligee.
Article 86 Assumption of Incidental Obligation in Case of Delegation
Where the obligor delegates an obligation, the new obligor shall assume any
incidental obligation associated with the main obligation, except where such
incidental obligation is exclusively personal to the original obligor.
Article 87 Assignment Subject to Approval
Where the obligee's assignment of a right or the obligor's delegation of an
obligation is subject to any procedure such as approval or registration, etc. as
required by a relevant law or administrative regulation, such provision applies.
Article 88 Concurrent Assignment and Delegation
Upon consent by the other party, one party may concurrently assign its rights
and delegate its obligations under a contract to a third person.
Article 89 Provisions Applicable to Concurrent Assignment
Where a party concurrently assigns its rights and delegates its obligations, the
provisions in Article 79, Articles 81 to 83, and Articles 85 to 87 apply.
Article 90 Effect of Combination or Division of Contract Party
Where a party has effected combination after it entered into a contract, the
legal person or organization of any other nature resulting from the combination
assumes the rights and obligations thereunder. Where a party has effected
division after it entered into a contract, unless otherwise agreed by the
obligee and obligor thereunder, the legal persons or other organizations
resulting from the division jointly and severally assume the rights and
obligations thereunder.
Chapter Six Discharge of Contractual Rights and Obligations
Article 91 Conditions for Discharge
The rights and obligations under a contract are discharged in any of the
following circumstances:
(i) The obligations were performed in accordance with the contract;
(ii) The contract was terminated;
(iii) The obligations were set off against each other;
(iv) The obligor placed the subject matter in escrow in accordance with the law;
(v) The obligee released the obligor from performance;
(vi) Both the obligee's rights and obligor's obligations were assumed by one
party;
(vii) Any other discharging circumstance provided by law or prescribed by the
parties occurred.
Article 92 Post-discharge Obligations
Upon discharge of the rights and obligations under a contract, the parties shall
abide by the principle of good faith and perform obligations such as
notification, assistance and confidentiality, etc. in accordance with the
relevant usage.
Article 93 Termination by Agreement; Termination Right
The parties may terminate a contract if they have so agreed.
The parties may prescribe a condition under which one party is entitled to
terminate the contract. Upon satisfaction of the condition for termination of
the contract, the party with the termination right may terminate the contract.
Article 94 Legally Prescribed Conditions Giving Rise to Termination Right
The parties may terminate a contract if:
(i) force majeure frustrated the purpose of the contract;
(ii) before the time of performance, the other party expressly stated or
indicated by its conduct that it will not perform its main obligations;
(iii) the other party delayed performance of its main obligations, and failed to
perform within a reasonable time after receiving demand for performance;
(iv) the other party delayed performance or otherwise breached the contract,
thereby frustrating the purpose of the contract;
(v) any other circumstance provided by law occurred.
Article 95 Time Limit for Termination; Extinguishment of Termination Right
Where the law or the parties prescribe a period for exercising termination
right, failure by a party to exercise it at the end of the period shall
extinguish such right.
Where neither the law nor the parties prescribe a period for exercising
termination right, failure by a party to exercise it within a reasonable time
after receiving demand from the other party shall extinguish such right.
Article 96 Termination by Notification; Termination Subject to Approval
The party availing itself of termination of a contract in accordance with
Paragraph 2 of Article 93 and Article 94 hereof shall notify the other party.
The contract is terminated when the notice reaches the other party. If the other
party objects to the termination, the terminating party may petition the
People's Court or an arbitration institution to affirm the validity of the
termination.
Where termination of a contract is subject to any procedure such as approval or
registration, etc. as required by a relevant law or administrative regulation,
such provision applies.
Article 97 Remedies in Case of Termination
Upon termination of a contract, a performance which has not been rendered is
discharged; if a performance has been rendered, a party may, in light of the
degree of performance and the nature of the contract, require the other party to
restore the subject matter to its original condition or otherwise remedy the
situation, and is entitled to claim damages.
Article 98 Settlement and Winding-up Provisions Not Affected by Discharge
Discharge of contractual rights and obligations does not affect the validity of
contract provisions concerning settlement of account and winding-up.
Article 99 Set-off; Set-off Not Subject to Condition
Where each party owes performance to the other party that is due, and the
subject matters of the obligations are identical in type and quality, either
party may set off its obligation against the obligation of the other party,
except where set-off is prohibited by law or in light of the nature of the
contract.
The party availing itself of set-off shall notify the other party. The notice
becomes effective when it reaches the other party. Set-off may not be subject to
any condition or time limit.
Article 100 Set-off Involving Non-identical Subject Matters
Where each party owes performance to the other party that is due, and the
subject matters of the obligations are not identical in type and quality, the
parties may effect set-off by mutual agreement.
Article 101 Conditions Giving Rise to Right to Place Subject Matter in Escrow
Where any of the following circumstances makes it difficult to render
performance, the obligor may place the subject matter in escrow:
(i) The obligee refuses to take delivery of the subject matter without cause;
(ii) The obligee cannot be located;
(iii) The obligee is deceased or incapacitated, and his heir or guardian is not
determined;
(iv) Any other circumstance provided by law occurs.
Where the subject matter is not fit for escrow, or the escrow expenses will be
excessive, the obligor may auction or liquidate the subject matter and place the
proceeds in escrow.
Article 102 Duty to Notify in Case of Escrow
After placing the subject matter in escrow, the obligor shall timely notify the
obligee or his heir or guardian, except where the obligee cannot be located.
Article 103 Risk of Loss; Fruits of Subject Matter Accrued during Escrow
Once the subject matter is in escrow, the risk of its damage or loss is borne by
the obligee. The fruits of the subject matter accrued during escrow belong to
the obligee. Escrow expenses shall be borne by the obligee.
Article 104 Taking Delivery of Subject Matter in Escrow Conditional upon
Performance; Time Limit
The obligee may take delivery of the subject matter in escrow at any time,
provided that if the obligee owes performance toward the obligor that is due,
prior to the obligee's performance or provision of assurance, the escrow agent
shall reject the obligee's attempt to take delivery of the subject matter in
escrow as required by the obligor.
The right of the obligee to take delivery of the subject matter in escrow is
extinguished if not exercised within five years, commencing on the date when the
subject matter was placed in escrow. After deduction of escrow expenses, the
subject matter in escrow shall be turned over to the state.
Article 105 Release
Where the obligee released the obligor from performance in part or in whole, the
rights and obligations under the contract are discharged in part or in whole.
Article 106 Merger of Rights and Obligations
If the same party assumed all the rights and obligations under a contract, the
rights and obligations thereunder are discharged, except where the contract
involves the interests of a third person.
Chapter Seven Liabilities for Breach of Contracts
Article 107 Types of Liabilities for Breach
If a party fails to perform its obligations under a contract, or rendered
non-conforming performance, it shall bear the liabilities for breach of contract
by specific performance, cure of non-conforming performance or payment of
damages, etc.
Article 108 Anticipatory Breach
Where one party expressly states or indicates by its conduct that it will not
perform its obligations under a contract, the other party may hold it liable for
breach of contract before the time of performance.
Article 109 Monetary Specific Performance
If a party fails to pay the price or remuneration, the other party may require
payment thereof.
Article 110 Non-monetary Specific Performance; Exceptions
Where a party fails to perform, or rendered non-conforming performance of, a
non-monetary obligation, the other party may require performance, except where:
(i) performance is impossible in law or in fact;
(ii) the subject matter of the obligation does not lend itself to enforcement by
specific performance or the cost of performance is excessive;
(iii) the obligee does not require performance within a reasonable time.
Article 111 Liabilities in Case of Quality Non-compliance
Where a performance does not meet the prescribed quality requirements, the
breaching party shall be liable for breach in accordance with the contract.
Where the liabilities for breach were not prescribed or clearly prescribed, and
cannot be determined in accordance with Article 61 hereof, the aggrieved party
may, by reasonable election in light of the nature of the subject matter and the
degree of loss, require the other party to assume liabilities for breach by way
of repair, replacement, remaking, acceptance of returned goods, or reduction in
price or remuneration, etc.
Article 112 Liability for Damages Notwithstanding Subsequent Performance or Cure
of Non-conforming Performance
Where a party failed to perform or rendered non-conforming performance, if
notwithstanding its subsequent performance or cure of non-conforming
performance, the other party has sustained other loss, the breaching party shall
pay damages.
Article 113 Calculation of Damages; Damages to Consumer
Where a party failed to perform or rendered non-conforming performance, thereby
causing loss to the other party, the amount of damages payable shall be
equivalent to the other party's loss resulting from the breach, including any
benefit that may be accrued from performance of the contract, provided that the
amount shall not exceed the likely loss resulting from the breach which was
foreseen or should have been foreseen by the breaching party at the time of
conclusion of the contract.
Where a merchant engages in any fraudulent activity while supplying goods or
services to a consumer, it is liable for damages in accordance with the Law of
the People's Republic of China on Protection of Consumer Rights.
Article 114 Liquidated Damages; Adjustment; Continuing Performance
Notwithstanding Payment of Liquidated Damages
The parties may prescribe that if one party breaches the contract, it will pay a
certain sum of liquidated damages to the other party in light of the degree of
breach, or prescribe a method for calculation of damages for the loss resulting
from a party's breach.
Where the amount of liquidated damages prescribed is below the loss resulting
from the breach, a party may petition the People's Court or an arbitration
institution to increase the amount; where the amount of liquidated damages
prescribed exceeds the loss resulting from the breach, a party may petition the
People's Court or an arbitration institution to decrease the amount as
appropriate.
Where the parties prescribed liquidated damages for delayed performance, the
breaching party shall, in addition to payment of the liquidated damages, render
performance.
Article 115 Deposit
The parties may prescribe that a party will give a deposit to the other party as
assurance for the obligee's right to performance in accordance with the Security
Law of the People's Republic of China. Upon performance by the obligor, the
deposit shall be set off against the price or refunded to the obligor. If the
party giving the deposit failed to perform its obligations under the contract,
it is not entitled to claim refund of the deposit; where the party receiving the
deposit failed to perform its obligations under the contract, it shall return to
the other party twice the amount of the deposit.
Article 116 Election Between Deposit or Liquidated Damages Clauses
If the parties prescribed payment of both liquidated damages and a deposit, in
case of breach by a party, the other party may elect in alternative to apply the
liquidated damages clause or the deposit clause.
Article 117 Force Majeure
A party who was unable to perform a contract due to force majeure is exempted
from liability in part or in whole in light of the impact of the event of force
majeure, except otherwise provided by law. Where an event of force majeure
occurred after the party's delay in performance, it is not exempted from
liability.
For purposes of this Law, force majeure means any objective circumstance which
is unforeseeable, unavoidable and insurmountable.
Article 118 Duty to Notify in Case of Force Majeure
If a party is unable to perform a contract due to force majeure, it shall timely
notify the other party so as to mitigate the loss that may be caused to the
other party, and shall provide proof of force majeure within a reasonable time.
Article 119 Non-Breaching Party's Duty to Mitigate Loss in Case of Breach
Where a party breached the contract, the other party shall take the appropriate
measures to prevent further loss; where the other party sustained further loss
due to its failure to take the appropriate measures, it may not claim damages
for such further loss.
Any reasonable expense incurred by the other party in preventing further loss
shall be borne by the breaching party.
Article 120 Bilateral Breach
In case of bilateral breach, the parties shall assume their respective
liabilities accordingly.
Article 121 Breach Due to Act of Third Person
Where a party's breach was attributable to a third person, it shall nevertheless
be liable to the other party for breach. Any dispute between the party and such
third person shall be resolved in accordance with the law or the agreement
between the parties.
Article 122 Election of Remedy in Tort or in Contract
Where a party's breach harmed the personal or property interests of the other
party, the aggrieved party is entitled to elect to hold the party liable for
breach of contract in accordance herewith, or hold the party liable for tort in
accordance with any other relevant law.
Chapter Eight Other Provisions
Article 123 Applicability of Other Laws
Where another law provides otherwise in respect of a certain contract, such
provisions prevail.
Article 124 Applicability to Non-categorized Contracts
Where there is no express provision in the Specific Provisions hereof or any
other law concerning a certain contract, the provisions in the General
Principles hereof apply, and reference may be made to the provisions in the
Specific Provisions hereof or any other law applicable to a contract which is
most similar to such contract.
Article 125 Contract Interpretation; Language Versions
In case of any dispute between the parties concerning the construction of a
contract term, the true meaning thereof shall be determined according to the
words and sentences used in the contract, the relevant provisions and the
purpose of the contract, and in accordance with the relevant usage and the
principle of good faith.
Where a contract was executed in two or more languages and it provides that all
versions are equally authentic, the words and sentences in each version are
construed to have the same meaning. In case of any discrepancy in the words or
sentences used in the different language versions, they shall be interpreted in
light of the purpose of the contract.
Article 126 Choice of Law in Foreign-related Contracts; Contracts Subject to
Mandatory Application of Chinese Law
Parties to a foreign related contract may select the applicable law for
resolution of a contractual dispute, except otherwise provided by law. Where
parties to the foreign related contract failed to select the applicable law, the
contract shall be governed by the law of the country with the closest connection
thereto.
For a Sino-foreign Equity Joint Venture Enterprise Contract, Sino-foreign
Cooperative Joint Venture Contract, or a Contract for Sino-foreign Joint
Exploration and Development of Natural Resources which is performed within the
territory of the People's Republic of China, the law of the People's Republic of
China applies.
Article 127 Role of Regulatory Authorities
Within the scope of their respective duties, the authority for the
administration of industry and commerce and other relevant authorities shall, in
accordance with the relevant laws and administrative regulations, be responsible
for monitoring and dealing with any illegal act which, through the conclusion of
a contract, harms the state interests or the public interests; where such act
constitutes a crime, criminal liability shall be imposed in accordance with the
law.
Article 128 Dispute Resolution
The parties may resolve a contractual dispute through settlement or mediation.
Where the parties do not wish to, or are unable to, resolve such dispute through
settlement or mediation, the dispute may be submitted to the relevant
arbitration institution for arbitration in accordance with the arbitration
agreement between the parties. Parties to a foreign related contract may apply
to a Chinese arbitration institution or another arbitration institution for
arbitration. Where the parties did not conclude an arbitration agreement, or the
arbitration agreement is invalid, either party may bring a suit to the People's
Court. The parties shall perform any judgment, arbitral award or mediation
agreement which has taken legal effect; if a party refuses to perform, the other
party may apply to the People's Court for enforcement.
Article 129 Time Limit for Action
For a dispute arising from a contract for the international sale of goods or a
technology import or export contract, the time limit for bringing a suit or
applying for arbitration is four years, commencing on the date when the party
knew or should have known that its rights were harmed. For a dispute arising
from any other type of contract, the time limit for bringing a suit or applying
for arbitration shall be governed by the relevant law.
SPECIFIC PROVISIONS
Chapter Nine Sales Contracts
Article 130 Definition of Sales Contract
A sales contract is a contract whereby the seller transfers title to the subject
matter to the buyer, who pays the price.
Article 131 Additional Terms
In addition to the terms set forth in Article 12 hereof, a sales contract may
include terms such as packing method, inspection standard and inspection method,
method of settlement of account, and the language versions of the contract and
the authenticity thereof, etc.
Article 132 Title or Disposal Power; Prohibition of or Restriction on Transfer
The seller shall have title to, or the power to dispose of, the subject matter
for sale.
Where a law or administrative regulation prohibits or restricts the transfer of
the subject matter, such provision applies.
Article 133 Passing of Title
Title to the subject matter passes at the time of its delivery, except otherwise
provided by law or agreed by the parties.
Article 134 Conditional Sale
The parties may prescribe in the sales contract that title to the subject matter
remain in the seller until the buyer has paid the price or has performed other
obligations.
Article 135 Seller's Obligations with Respect to Title Transfer
The seller shall perform the obligations of delivering to the buyer the subject
matter or the document for taking delivery thereof, as well as transferring
title to the subject matter.
Article 136 Delivery of Related Materials by Seller
In addition to the document for taking delivery, the seller shall deliver to the
buyer documents and materials related to the subject matter in accordance with
the contract or in accordance with the relevant usage.
Article 137 Sales Involving Intellectual Property
In a sale of any subject matter which contains intellectual property such as
computer software, etc., the intellectual property in the subject matter does
not vest in the buyer, except otherwise provided by law or agreed by the
parties.
Article 138 Time of Delivery
The seller shall deliver the subject matter at the prescribed time. Where the
contract prescribes a period during which delivery is to take place, the seller
may deliver at any time during the delivery period.
Article 139 Absence of Provision for Time of Delivery
Where the time for delivery of the subject matter was not prescribed or clearly
prescribed, Article 61 and Item 4 of Article 62 apply.
Article 140 Time of Delivery of Subject Matter Already in Buyer's Possession
Where the subject matter was in buyer's possession prior to conclusion of the
contract, the time when the contract becomes effective is the time of delivery.
Article 141 Absence of Provision for Place of Delivery
The seller shall deliver the subject matter at the prescribed place.
Where the place of delivery was not prescribed or clearly prescribed, and cannot
be determined in accordance with Article 61 hereof, the following provisions
apply:
(i) If the subject matter needs carriage, the seller shall deliver the subject
matter to the first carrier for transmission to the buyer;
(ii) Where the subject matter does not need carriage, if at the time of
conclusion of the contract, the buyer and the seller knew the subject matter was
at a particular place, the seller shall deliver the subject matter at such
place; and if they did not know the location of the subject matter, delivery
shall take place at the seller's place of business at the time of conclusion of
the contract.
Article 142 Passing of Risk
The risk of damage to or loss of the subject matter is borne by the seller prior
to delivery, and by the buyer after delivery, except otherwise provided by law
or agreed by the parties.
Article 143 Risk Allocation in Case of Delayed Delivery
Where the subject matter was not delivered at the prescribed time due to any
reason attributable to the buyer, the buyer shall bear the risk of damage to or
loss of the subject matter as from the date of breach.
Article 144 Risk Allocation for Subject Matter in Transit
Where the seller sells the subject matter which has been delivered to a carrier
for transportation and is in transit, unless otherwise agreed by the parties,
the risk of damage or loss is borne by the buyer as from the time of formation
of the contract.
Article 145 Passing of Risk in Case of Seller Arranged Carriage
Where the place of delivery was not prescribed or clearly prescribed, if the
subject matter needs carriage as provided in Item (i) of Paragraph 2 of Article
141, the risk of damage to or loss of the subject matter is borne by the buyer
as from the time the seller delivers the subject matter to the first carrier.
Article 146 Risk Allocation in Case of Delay in Taking Delivery
Where the seller placed the subject matter at the place of delivery in
accordance with the contract or in accordance with Item (ii) of Paragraph 2 of
Article 141 hereof and the buyer fails to take delivery in breach of the
contract, the risk of damage to or loss of the subject matter is borne by the
buyer as from the date of breach.
Article 147 Passing of Risk Notwithstanding Failure to Deliver Documents
Failure by the seller to deliver the documents and materials relating to the
subject matter in accordance with the contract does not affect passing of the
risk of damage to or loss of the subject matter.
Article 148 Rejection on Grounds of Quality Non-compliance; Risk Allocation in
Case of Rejection
Where the purpose of the contract is frustrated due to failure of the subject
matter to meet the quality requirements, the buyer may reject the subject matter
or terminate the contract. If the buyer rejects the subject matter or terminates
the contract, the risk of damage to or loss of the subject matter is borne by
the seller.
Article 149 Right to Remedy Notwithstanding Assumption of Risk
Buyer's assumption of the risk of damage to or loss of the subject matter does
not prejudice its right to hold the seller liable for breach of contract if the
seller rendered non-conforming performance.
Article 150 Third Party Claim Warranty
The seller is obligated to warrant that the buyer will be free from any third
party claim against it in respect of the subject matter delivered, except
otherwise provided by law.
Article 151 Buyer's Knowledge Releasing Third Party Claim Warranty
Where the buyer knew or should have known that the subject matter was subject to
a third party claim at the time of conclusion of the contract, the seller does
not assume the obligation prescribed in Article 150 hereof.
Article 152 Right to Withhold Payment in Case of Third Party Claim
Where the buyer has conclusive evidence establishing that a third person may
make a claim on the subject matter, it may withhold payment of the corresponding
price, except where the seller has provided appropriate assurance.
Article 153 Quality Specifications
The seller shall deliver the subject matter in compliance with the prescribed
quality requirements. Where the seller gave quality specifications for the
subject matter, the subject matter delivered shall comply with the quality
requirements set forth therein.
Article 154 Absence of Prescribed Quality Requirements
Where the quality requirements for the subject matter were not prescribed or
clearly prescribed, and cannot be determined in accordance with Article 61
hereof, Item (i) of Article 62 hereof applies.
Article 155 Quality Non-compliance Giving Rise to Claims
If the subject matter delivered by the seller fails to comply with the quality
requirements, the buyer may hold the seller liable for breach of contract in
accordance with Article 111 hereof.
Article 156 Packing Method
The seller shall deliver the subject matter packed in the prescribed manner.
Where a packing method was not prescribed or clearly prescribed, and cannot be
determined in accordance with Article 61 hereof, the subject matter shall be
packed in a customary manner, or, if there is no customary manner, in a manner
adequate to protect the subject matter.
Article 157 Inspection upon Receipt of Subject Matter
Upon receipt of the subject matter, the buyer shall inspect it within the
prescribed inspection period. Where no inspection period was prescribed, the
buyer shall timely inspect the subject matter.
Article 158 Consequence of Failure to Inspect; Exceptions
Where an inspection period was prescribed, the buyer shall notify the seller of
any non-compliance in quantity or quality of the subject matter within such
inspection period. Where the buyer delayed in notifying the seller, the quantity
or quality of the subject matter is deemed to comply with the contract.
Where no inspection period was prescribed, the buyer shall notify the seller
within a reasonable period, commencing on the date when the buyer discovered or
should have discovered the quantity or quality non-compliance. If the buyer
fails to notify within a reasonable period or fails to notify within 2 years,
commencing on the date when it received the subject matter, the quantity or
quality of the subject matter is deemed to comply with the contract, except that
if there is a warranty period in respect of the subject matter, the warranty
period applies and supersedes such two year period.
Where the seller knew or should have known the non-compliance of the subject
matter, the buyer is not subject to the time limits for notification prescribed
in the previous two paragraphs.
Article 159 Absence of Price Provision
The buyer shall pay the price in the prescribed amount. Where the price was not
prescribed or clearly prescribed, the provisions of Article 61 and Item (ii) of
Article 62 apply.
Article 160 Place of Payment
The buyer shall pay the price at the prescribed place. Where the place of
payment was not prescribed or clearly prescribed, and cannot be determined in
accordance with Article 61 hereof, the buyer shall make payment at the seller's
place of business, provided that if the parties agreed that payment shall be
conditional upon delivery of the subject matter or the document for taking
delivery thereof, payment shall be made at the place where the subject matter,
or the document for taking delivery thereof, is delivered.
Article 161 Time of Payment
The buyer shall pay the price at the prescribed time. Where the time for payment
was not prescribed or clearly prescribed, and cannot be determined in accordance
with Article 61 hereof, the buyer shall make payment at the same time it
receives the subject matter or the document for taking delivery thereof.
Article 162 Buyer's Option in Case Delivered Quantity Exceeds Prescribed Amount
Where the seller delivered the subject matter in a quantity greater than that
prescribed in the contract, the buyer may accept or reject the excess quantity.
Where the buyer accepts the excess quantity, it shall pay the price based on the
contract rate; where the buyer rejects the excess quantity, it shall timely
notify the seller.
Article 163 Title to Fruits Before and After Delivery
The fruits of the subject matter belong to the seller if accrued before
delivery, and to the buyer if accrued after delivery.
Article 164 Effect of Termination on Grounds of Non-compliance of Main or
Ancillary Components
Where a contract is terminated due to non-compliance of any main component of
the subject matter, the effect of termination extends to the ancillary
components. Where the contract is terminated due to non-compliance of any
ancillary component of the subject matter, the effect of termination does not
extend to the main components.
Article 165 Termination in Part or in Whole
Where the subject matter comprises of a number of components, one of which does
not comply with the contract, the buyer may terminate the portion of the
contract in respect of such component, provided that if severance of such
component with the other components will significantly diminish the value of the
subject matter, the party may terminate the contract in respect of such number
of components.
Article 166 Effect of Termination in Case of Delivery in Installments
Where the seller is to deliver the subject matter in installments, if the
seller's failure to deliver or non-conforming delivery of one installment
frustrates the purpose of the contract in respect of such installment, the buyer
may terminate the portion of the contract in respect thereof.
If the seller's failure to deliver or non-conforming delivery of one installment
frustrates the purpose of the contract in respect of all subsequent installments
notwithstanding their delivery, the buyer may terminate the portion of the
contract in respect of such installment as well as any subsequent installment.
If the buyer is to terminate the portion of the contract in respect of a
particular installment which is interdependent with all other installments, it
may terminate the contract in respect of all delivered and undelivered
installments.
Article 167 Termination in Case of Sale by Installment Payment
In a sale by installment payment, where the buyer failed to make payments as
they became due, if the delinquent amount has reached one fifth of the total
price, the seller may require payment of the full price from the buyer or
terminate the contract. If the seller terminates the contract, it may require
the buyer to pay a fee for its use of the subject matter.
Article 168 Quality Provisions in Case of Sale by Sample
In a sale by sample, the parties shall place the sample under seal, and may
specify the quality of the sample. The subject matter delivered by the seller
shall comply with the sample as well as the quality specifications.
Article 169 Latent Defect in Sample
In a sale by sample, if the buyer was not aware of a latent defect in the
sample, the subject matter delivered by the seller shall nevertheless comply
with the normal quality standard for a like item, even though the subject matter
delivered complies with the sample.
Article 170 Sale by Trial
In a sale by trial, the parties may prescribe the trial period. Where a trial
period was not prescribed or clearly prescribed, and cannot be determined in
accordance with Article 61 hereof, it shall be determined by the seller.
Article 171 Purchase or Rejection During Trial Period
In a sale by trial, the buyer may either purchase or reject the subject matter
during the trial period. At the end of the trial period, the buyer is deemed to
have made the purchase if it fails to manifest its intention to purchase or
reject the subject matter.
Article 172 Sale by Tender Governed by Relevant Laws
In a sale by tender, matters such as the rights and obligations of the parties
and the tendering procedure, etc. are governed by the relevant laws and
administrative regulations.
Article 173 Sale by Auction Governed by Relevant Laws
In a sale by auction, matters such as the rights and obligations of the parties
and the auctioning procedure, etc. are governed by the relevant laws and
administrative regulations.
Article 174 General Applicability to Contracts for Value
For any other contract for value, if the law provides for such contract, such
provisions apply; absent any such provision, reference shall be made to the
relevant provisions governing sales contracts.
Article 175 Applicability to Barter Transaction
Where the parties agree on a barter transaction involving transfer of title to
the subject matters, such transaction shall be governed by reference to the
relevant provisions governing sales contracts.
Chapter Ten Contracts for Supply of Power, Water, Gas , Or Heat
Article 176 Definition of Power Supply Contract
A power supply contract is a contract whereby the power supplier supplies power
to the power customer, who pays the electricity charge.
Article 177 Terms of Power Supply Contract
A power supply contract includes terms such as the method, quality, and time of
power supply, and the capacity, location and nature of power use, and the
metering method, electricity rate, the method of settlement of electricity
charge, and the responsibility for maintenance of the power supply and power use
facilities, etc.
Article 178 Place of Performance of Power Supply Contract
The place of performance of a power supply contract shall be the place
prescribed by the parties, and if not prescribed or clearly prescribed, the
place of performance shall be the boundary where ownership of the power supply
facilities is divided.
Article 179 Obligations of Power Supplier
The power supplier shall supply power in a safe manner in accordance with the
power supply quality standard mandated by the state and in accordance with the
contract. Where the power supplier failed to supply power in a safe manner in
accordance with the power supply quality standard mandated by the state and in
accordance with the contract, thereby causing loss to the power customer, it
shall be liable for damages.
Article 180 Obligation to Notify in Case of Scheduled Suspension
Where the power supplier needs to suspend power supply due to reasons such as
periodical maintenance or provisional maintenance of the power supply
facilities, legally required power rationing, or illegal use of power by the
power customer, etc., it shall notify the power customer in advance in
accordance with the relevant stipulations of the state. Where the power supplier
suspended power supply without notifying the power customer in advance, thereby
causing loss to the power customer, it shall be liable for damages.
Article 181 Obligation to Make Emergency Repair in Case of Power Outage
Where a power outage is caused by reasons such as natural disasters, etc., the
power supplier shall timely make emergency repair in accordance with the
relevant stipulations of the state. Where the power supplier failed to timely
make emergency repair, thereby causing loss to the power customer, it shall be
liable for damages.
Article 182 Payment of Electricity Charge
The power customer shall timely pay the electricity charge in accordance with
the relevant stipulations of the state and in accordance with the contract.
Where the power customer delayed in paying the electricity charge, it shall pay
liquidated damages in accordance with the contract. Where the power customer
failed to pay the electricity charge and liquidated damages within a reasonable
time after receiving demand for payment, the power supplier may shut off the
power supply in accordance with the procedure prescribed by the state.
Article 183 Power Customer's Obligation of Proper Use
The power customer shall use power in a safe manner in accordance with the
relevant stipulations of the state and in accordance with the contract. Where
the power customer failed to use power in a safe manner in accordance with the
relevant stipulations of the state and in accordance with the contract, thereby
causing loss to the power supplier, it shall be liable for damages.
Article 184 Applicability to Contract for Supply of Water, Gas or Heat
A contract for the supply of water, gas or heat shall be governed by reference
to the relevant provisions governing power supply contracts.
Chapter Eleven Gift Contracts
Article 185 Definition of Gift Contract
A gift contract is a contract whereby the donor conveys his property to the
donee without reward and the donee manifests his acceptance of the gift.
Article 186 Revocation Prior to Transfer of Rights; Exception
Prior to the transfer of rights to the gift property, the donor may revoke the
gift.
The previous paragraph does not apply to any gift contract the nature of which
serves public interests or fulfills a moral obligation, such as disaster relief,
poverty relief, etc., or any gift contract which has been notarized.
Article 187 Observance of Conveyance Procedure
Where conveyance of the gift property is subject to any procedure such as
registration, etc. under the law, the relevant procedure shall be carried out.
Article 188 Donee's Right to Require Delivery in Certain Cases
In the case of a gift contract the nature of which serves public interests or
fulfills a moral obligation, such as disaster relief, poverty relief, etc., or a
gift contract which has been notarized, if the donor fails to deliver the gift
property, the donee may require delivery.
Article 189 Liability of Donor for Misconduct or Gross Negligence
Where the gift property is damaged or lost due to any intentional misconduct or
gross negligence of the donor, he shall be liable for damages.
Article 190 Gift May Be Subject to Obligations
A gift may be subject to obligations.
Where the gift is subject to obligations, the donee shall perform his
obligations in accordance with the contract.
Article 191 Donor Not Liable for Defect; Exceptions
The donor is not liable for any defect in the gift property. Where the gift is
subject to obligations, and the gift property is defective, the donor has the
same warranty obligations as a seller to the extent of the prescribed
obligations.
Where the donor intentionally omitted to inform the donee of the defect or
warranted the absence of any defect, thereby causing loss to the donee, he shall
be liable for damages.
Article 192 Circumstances Giving Rise to Revocation Right
Where the donee is in any of the following circumstances, the donor may revoke
the gift:
(i) seriously harming the donor or any immediate family member thereof;
(ii) failing to perform support obligations owed to the donor;
(iii) failing to perform the obligations under the gift contract.
The donor shall exercise his revocation right within one year after he became,
or should have become, aware of the cause for revocation.
Article 193 Exercise of Revocation Right by Heir
Where the donor is deceased or incapacitated due to the donee's illegal act, his
heir or legal agent may revoke the gift.
The heir or legal agent of the donor shall exercise the right of revocation
within six months after he became, or should have become, aware of the cause for
revocation.
Article 194 Remedies in Case of Revocation
Upon revocation of the gift, the person with the revocation right may claim
restitution of the gift property from the donee.
Article 195 Economic Hardship Releases Gift Obligation
If the donor's economic situation has deteriorated significantly, thereby
seriously impacting on his business operation or family life, he may be released
from the gift obligations.
Chapter Twelve Contracts for Loan of Money
Article 196 Definition of Contract for Loan of Money
A contract for loan of money is a contract whereby the borrower borrows a sum of
money from the lender, and returns the sum borrowed and pays interest thereon at
the prescribed time.
Article 197 Writing Requirement; Terms
A contract for loan of money shall be in writing, except where the loan is
between natural persons who have agreed otherwise.
A contract for loan of money includes terms such as the loan's type, currency,
purpose, amount, interest rate, term and method of repayment, etc.
Article 198 Assurance by Borrower
In entering into a contract for loan of money, the lender may require the
borrower to provide assurance. Such assurance shall be arranged in accordance
with the Security Law of the People's Republic of China.
Article 199 Borrower's Disclosure Obligation
In entering into a contract for loan of money, the borrower shall provide true
information concerning its business operation and financial condition in
connection with the loan as required by the lender.
Article 200 Deduction of Interest in Advance Prohibited
No interest shall be deducted from the principal in advance. Where any interest
amount is deducted from the principal in advance, the repayment of principal and
calculation of interest shall be based on the actual amount borrowed.
Article 201 Remedies in Case of Failure to Make Loan Amount Available Or Failure
to Draw Down
Where the lender failed to make the loan amount available on the prescribed date
and in the prescribed amount, thereby causing loss to the borrower, it shall pay
damages.
Where the borrower failed to draw down on the prescribed date and in the
prescribed amount, it shall nevertheless pay the interest on the prescribed date
and in the prescribed amount.
Article 202 Lender Entitled to Monitor Use of Proceeds
The lender may examine and monitor the application of the proceeds in accordance
with the contract. The borrower shall periodically provide the lender with
materials such as related financial and accounting reports, etc. in accordance
with the contract.
Article 203 Lender's Remedies in Case of Borrower's Misuse of Proceeds
Where the borrower fails to use the proceeds for the prescribed purpose, the
lender may withhold funding, call the loan, or terminate the contract.
Article 204 Minimum and Maximum Interest Rates
The interest rate on the loan provided by a financial institution engaged in
lending operation shall be prescribed between the minimum and maximum rates
mandated by the People's Bank of China.
Article 205 Time of Interest Payment
The borrower shall pay the interest at the prescribed time. Where the time of
interest payment was not prescribed or clearly prescribed, and cannot be
determined in accordance with Article 61 hereof, if the loan term is less than
one year, the interest shall be paid together with the principal at the time of
repayment; if the loan term is one year or longer, the interest shall be paid at
the end of each annual period, and where the remaining period is less than one
year, the interest shall be paid together with the principal at the time of
repayment.
Article 206 Time of Principal Repayment
The borrower shall repay the principal at the prescribed time. Where the time of
repayment was not prescribed or clearly prescribed, and cannot be determined in
accordance with Article 61 hereof, the borrower may repay at any time; and the
lender may demand repayment from the borrower within a reasonable time.
Article 207 Delayed Repayment Interest
Where the borrower failed to repay the loan at the prescribed time, it shall pay
delayed repayment interest in accordance with the contract or the relevant
stipulations of the state.
Article 208 Calculation of Interest in Case of Prepayment
Where the borrower prepays the loan, unless otherwise agreed by the parties, the
interest shall be calculated based on the actual period of loan.
Article 209 Extension of Loan Term
The borrower may apply to the lender for extension of the loan term before its
maturity. Upon consent by the lender, the loan term may be extended.
Article 210 Time of Effectiveness of Loan Contract between Natural Persons
A contract for loan of money between natural persons becomes effective at the
time the lender makes the loan amount available.
Article 211 Interest under Loan Contract between Natural Persons
Under a contract for loan of money between natural persons, if payment of
interest was not prescribed or clearly prescribed, the loan is deemed interest
free.
Under a contract for loan of money between natural persons, the interest rate on
the loan may not contravene the relevant stipulations of the state regarding
limit on loan interest rate.
Chapter Thirteen Leasing Contracts
Article 212 Definition of Leasing Contract
A leasing contract is a contract whereby the lessor delivers to the lessee the
lease item for it to use or accrue benefit from, and the lessee pays the rent.
Article 213 Terms of Leasing Contract
A leasing contract includes terms such as the name, quantity and purpose of the
lease item, lease term, amount of rent, time and method of rent payment, as well
as maintenance and repair of the lease item, etc.
Article 214 Limit on Lease Term; Renewal
The lease term may not exceed twenty years. If the lease term exceeds twenty
years, the portion of the lease term beyond the initial twenty year period is
invalid.
At the end of the lease term, the parties may renew the lease, provided that the
renewed term may not exceed twenty years commencing on the date of renewal.
Article 215 Writing Requirement in Case Lease Term Is Six Months or Longer
Where the lease term is six months or longer, the lease shall be in writing. If
the parties fail to adopt a writing, the lease is deemed a non-term lease.
Article 216 Lessor's Obligation to Deliver Lease Item
The lessor shall deliver the lease item to the lessee in accordance with the
contract and shall, during the lease term, keep the lease item fit for the
prescribed purpose.
Article 217 Manner of Using Lease Item
The lessee shall use the lease item in the prescribed manner. Where the manner
of use of the lease item was not prescribed or clearly prescribed, and cannot be
determined in accordance with Article 61 hereof, the lease item shall be used in
a manner consistent with its nature.
Article 218 Lessee Not Liable for Wear and Tear
Where the lessee used the lease item in the prescribed manner or in a manner
consistent with its nature, thereby causing wear and tear to the lease item, it
is not liable for damages.
Article 219 Lessor Entitled to Terminate in Case of Unauthorized Use
Where the lessee failed to use the lease item in the prescribed manner or in a
manner consistent with its nature, thereby causing damage to it, the lessor may
terminate the contract and claim damages.
Article 220 Lessor's Maintenance Obligations
The lessor shall perform the obligations of maintenance and repair of the lease
item, except otherwise agreed by the parties.
Article 221 Lessee's Remedies in Case of Lessor's Failure to Maintain Lease Item
Where the lease item needs maintenance or repair, the lessee may require the
lessor to perform maintenance or repair within a reasonable time.
If the lessor fails to fulfill its obligations of maintenance or repair, the
lessee may maintain or repair the lease item on its own at the lessor's expense.
Where the lessee's use of the lease item is impaired due to maintenance or
repair thereof, the rent shall be reduced or the lease term shall be extended
accordingly.
Article 222 Lessee's Obligation of Due Care
The lessee shall keep the lease item with due care and shall be liable for
damages if the lease item was damaged or lost due to improper care.
Article 223 Improvement or Addition
Subject to consent by the lessor, the lessee may make improvement on or addition
to the lease item.
If the lessee made improvement on or addition to the lease item without consent
by the lessor, the lessor may require the lessee to restore the lease item to
its original condition or claim damages.
Article 224 Sublease
Subject to consent by the lessor, the lessee may sublease the lease item to a
third person. Where the lessee subleases the lease item, the leasing contract
between the lessee and the lessor remains valid, and if the third person causes
damage to the lease item, the lessee shall pay damages.
Where the lessee subleases the lease item without the consent of the lessor, the
lessor may terminate the contract.
Article 225 Benefit Accrued from Lease Item During Lease Term
During the lease term, any benefit accrued from the possession or use of the
lease item belongs to the lessee, except otherwise agreed by the parties.
Article 226 Time for Rent Payment
The lessee shall pay the rent at the prescribed time. Where the time of payment
was not prescribed or clearly prescribed, and cannot be determined in accordance
with Article 61 hereof, the rent shall be paid at the end of the lease term if
it is less than one year; if the lease term is one year or longer, the rent
shall be paid at the end of each annual period, and where the remaining period
is less than one year, the rent shall be paid at the end of the lease term.
Article 227 Lessor's Remedies in Case of Non-Payment of Rent
Where the lessee failed to pay or delayed in paying the rent without cause, the
lessor may require the lessee to pay the rent within a reasonable period. If the
lessee fails to pay the rent at the end of such period, the lessor may terminate
the contract.
Article 228 Lessee's Remedies in Case of Third Party Claim; Duty to Notify
If due to any claim by a third person, the lessee is unable to use or accrue
benefit from the lease item, the lessee may require reduction in rent or refuse
to pay rent.
In case of any claim by a third person, the lessee shall timely notify the
lessor.
Article 229 Leasing Contract Not Affected by Change of Ownership
Any change of ownership to the lease item does not affect the validity of the
leasing contract.
Article 230 Sale of Dwelling Unit under Lease
Where the lessor is to sell a dwelling unit under a lease, it shall give the
lessee a reasonable advance notice before the sale, and the lessee has the right
of first refusal under the same conditions.
Article 231 Lessee's Remedies in Case of Damage Not Attributable to Itself
Where the lease item was damaged or lost in part or in whole due to any reason
not attributable to the lessee, the lessee may require reduction in rent or
refuse to pay rent; where the purpose of the contract is frustrated due to
damage to or loss of the lease item in part or in whole, the lessee may
terminate the contract.
Article 232 Non-Term Lease
Where the term of a lease was not prescribed or clearly prescribed, and cannot
be determined in accordance with Article 61 hereof, such lease is deemed a
non-term lease. Either party may terminate the contract at any time, provided
that the lessor shall give the lessee a reasonable advance notice before it
terminates the contract.
Article 233 Lessee Entitled to Terminate in Case of Danger to Safety or Health
Where the lease item poses a danger to the safety or health of the lessee, the
lessee may terminate the contract at any time even if the lessee was aware of
the quality non-compliance of the lease item at the time of conclusion of the
contract.
Article 234 Lease of Dwelling Unit Assumable
Where the lessee is deceased during the term of a dwelling unit lease, the
person jointly living in the unit with the lessee while the lessee was alive may
continue leasing it on the terms of the original leasing contract.
Article 235 Condition of Lease Item at End of Lease Term
The lessee shall return the lease item at the end of the lease term. The
returned lease item shall be in a condition resulting from its use in the
prescribed manner or in a manner consistent with its nature.
Article 236 Effect of Continued Use Beyond Lease Term
Upon expiration of the lease term, if the lessee continues to use the lease item
without objection by the lessor, the original leasing contract remains
effective, provided that it becomes a non-term lease.
Chapter Fourteen Financial Leasing Contracts
Article 237 Definition of Financial Leasing Contract
A financial leasing contract is a contract whereby the lessor, upon purchase of
the lessee-selected lease item from a lessee-selected seller, provides the lease
item to the lessee for its use, and the lessee pays the rent.
Article 238 Terms of Financial Leasing Contract; Writing Requirement
A financial leasing contract includes terms such as the name, quantity,
specifications, technical performance, and method of inspection of the lease
item, the lease term, the rental components and the time, method and currency of
payment, as well as the ownership of the lease item at the end of the lease
term, etc.
A financial leasing contract shall be in writing.
Article 239 Lessee's Assumption of Buyer's Rights
Under the sales contract concluded by the lessor according to the lessee's
selection of the seller and the lease item, the seller shall deliver the subject
matter to the lessee in accordance with the contract, and the lessee enjoys the
rights of the buyer in respect of taking delivery of the subject matter.
Article 240 Lessee's Assumption of Buyer's Remedies in Case of Seller's
Non-performance
The lessor, the seller and the lessee may agree that any claim arising from the
seller's non-performance of its obligations under the sales contract will be
made by the lessee. Where the lessee makes such a claim, the lessor shall
provide assistance.
Article 241 Certain Amendment of Sales Contract Subject to Consent by Lessee
Absent consent by the lessee, the lessor may not amend any lessee-related term
in the sales contract concluded by it according to the lessee's selection of the
seller and the lease item.
Article 242 Exclusion of Lease Item from Bankruptcy Assets of Lessee
Title to the lease item vests in the lessor. In case the lessee enters into
bankruptcy, the lease item is not part of its bankruptcy assets.
Article 243 Determination of Rental Components
Unless otherwise agreed by the parties, the rent under a financial leasing
contract shall be determined based on the major portion of or full costs of
purchasing the lease item and the lessor's reasonable profit.
Article 244 Lessor Not Liable for Non-fitness of Lease Item; Exceptions
Where the lease item does not comply with the contract or is not fit for the
intended purpose, the lessor is not liable, except where the lessee relied on
the skills of the lessor in selecting the lease item or the lessor interfered in
the selection thereof.
Article 245 Warranty by Lessor
The lessor shall give warranty in respect of the lessee's possession and use of
the lease item.
Article 246 Lessor Not Liable for Damage or Injury
If while in the possession of the lessee, the lease item caused personal injury
or property damage to any third person, the lessor is not liable.
Article 247 Lessee's Obligation of Due Care; Maintenance Obligations
The lessee shall keep and use the lease item with due care.
While in possession of the lease item, the lessee shall perform the obligations
of maintenance and repair thereof.
Article 248 Lessor' s Remedies in Case of Non-payment by Lessee
The lessee shall pay the rent in accordance with the contract. Where the lessee
fails to pay the rent within a reasonable period after receiving demand for
payment from the lessor, the lessor may require payment of the full rent; or it
may terminate the contract and repossess the lease item.
Article 249 Partial Refund in Case of Termination by Lessor
Where the parties agreed that title to the lease item will vest in the lessee at
the end of the lease term, and after paying a major portion of the rent, the
lessee is unable to pay the remaining balance, resulting in the lessor's
termination of the contract and repossession of the lease item, if the value of
the repossessed lease item exceeds the rent owed by the lessee and other
expenses, the lessee may require partial refund.
Article 250 Ownership of Lease Item at End of Lease Term
The lessor and the lessee may agree on the ownership of the lease item at the
end of the lease term. Where ownership of the lease item was not prescribed or
clearly prescribed, and cannot be determined in accordance with Article 61
hereof, title to the lease item shall vest in the lessor.
Chapter Fifteen Contracts of Hired Works
Article 251 Definition of Contract of Hired Work
A contract of hired work is a contract whereby the hiree completes certain work
as required by the hirer and delivers the work product, and the hirer pays the
remuneration.
Hired works include works such as processing, custom-made work, repair,
reproduction, testing, and inspection, etc.
Article 252 Terms of Contract of Hired Work
A contract of hired work includes terms such as the subject matter of hire,
quantity, quality, remuneration, method of hire, supply of materials, time of
performance, standard applicable to and method of acceptance inspection, etc.
Article 253 Use of Hiree's Own Resources; Delegation of Main Task Subject to
Consent
The hiree shall use its own equipment, skills and labor to complete the main
tasks, except otherwise agreed by the parties.
Where the hiree has delegated a main task of the hired work to a third person
for completion, it shall be responsible to the hirer for the work product
completed thereby; if the delegation was not approved by the hirer, the hirer
may also terminate the contract.
Article 254 Delegation of Ancillary Task by Hiree
The hiree may delegate any ancillary task of the hired work to a third person
for completion. Where the hiree delegated any ancillary task of the hired work
to a third person for completion, it shall be responsible to the hirer for the
work product completed thereby.
Article 255 Materials Supplied by Hiree Subject to Inspection
Where the hiree is to supply the materials, it shall select the materials in
accordance with the contract and shall make such materials available for
inspection by the hirer.
Article 256 Hiree's Timely Inspection of Materials Supplied by Hirer
Where the hirer is to supply the materials, it shall supply the materials in
accordance with the contract. The hiree shall timely inspect the materials
supplied by the hirer, and where non-compliance is discovered, it shall timely
instruct the hirer to replace or supplement the materials or otherwise cure the
non-compliance.
The hiree may not replace the materials supplied by the hirer without
authorization, and may not replace any component which does not require repair.
Article 257 Hiree's Remedies in Case of Hirer's Delay in Responding
Where the hiree discovers that the drawings or technical requirements provided
by the hirer are unreasonable, it shall timely notify the hirer. Where the hiree
sustains any loss due to reasons such as the hirer's delay in responding, etc.,
the hirer shall pay damages.
Article 258 Hirer Responsible for Its Change of Requirements
Where the hirer changed its requirements for the hired work while the work was
under way, thereby causing loss to the hiree, the hirer shall indemnify the
hiree.
Article 259 Hirer's Obligation to Assist in Performance
Where performance of the hired work requires assistance by the hirer, it is
obligated to provide assistance. Where the hired work is not capable of being
completed due to failure by the hirer to fulfill its obligation to assist, the
hiree may demand performance from the hirer within a reasonable period and
extend the time of its own performance; where the hirer fails to perform at the
end of such period, the hiree may terminate the contract.
Article 260 Hirer's Right to Monitor
In the course of performing the hired work, the hiree shall consent to any
necessary monitoring and inspection by the hirer. Any monitoring or inspection
conducted by the hirer may not impair the normal work of the hiree.
Article 261 Delivery of Work Product by Hiree
Upon completion of the hired work, the hiree shall deliver the work product to
the hirer and shall submit thereto the required technical materials and related
quality certificate. The hirer shall conduct acceptance inspection of the work
product.
Article 262 Hirer's Remedies in Case of Quality Non-compliance
Where the work product delivered by the hiree fails to meet the quality
requirements, the hirer may require the hiree to assume liabilities for breach
of contract by way of repair, remaking, reduction in remuneration, or payment of
damages.
Article 263 Time of Payment of Remuneration
The hirer shall pay the remuneration at the prescribed time. Where the time of
payment was not prescribed or clearly prescribed, and cannot be determined in
accordance with Article 61 hereof, the hirer shall make payment at the time of
the hiree's delivery of the work product; where the work product is partially
delivered, the hirer shall make payment accordingly.
Article 264 Hiree's Possessory Lien in Case of Non-Payment
Where the hirer fails to pay the remuneration or cost of materials, etc. to the
hiree, the hiree is entitled to a possessory lien on the work product completed,
except otherwise agreed by the parties.
Article 265 Hiree's Obligation of Due Care for Materials and Work Product
The hiree shall keep the materials supplied by the hirer and the completed work
product with due care, and shall be liable for damages in case of any damage or
loss due to improper care.
Article 266 Hiree's Confidentiality Obligations
The hiree shall keep the relevant information confidential as required by the
hirer, and may not retain any replica or technical material without permission
by the hirer.
Article 267 Liability of Joint Hirees
Joint hirees are jointly and severally liable to the hirer, except otherwise
agreed by the parties.
Article 268 Hirer's Termination Right Subject to Indemnification
The hirer may terminate the contract of hired work at any time, provided that it
shall indemnify the hiree for its loss as a result, if any.
Chapter Sixteen Contracts for Construction Projects
Article 269 Definition of Contract for Construction Project
A contract for construction project is a contract whereby the contractor
performs project construction, and the developer pays the price.
Contracts for construction projects include contracts for survey, design, and
construction.
Article 270 Writing Requirement
A contract for construction project shall be in writing.
Article 271 Tendering Process in Construction Project
Tendering for a construction project shall be conducted in an open, fair and
impartial manner in accordance with the relevant laws.
Article 272 Contracting and Subcontracting in Construction Projects
The developer may enter into a contract for construction project with a prime
contractor, or enter into contracts for survey, design, and construction with
the surveyor, designer, and constructor respectively. The developer may not
divide a construction project which should be completed by one contractor into
several parts and contract them out to several contractors.
Subject to consent by the developer, the prime contractor or the contractor for
survey, design, or construction may delegate part of the contracted work to a
third person. The third person and the prime contractor or the contractor for
survey, design, or construction shall be jointly and severally liable to the
developer in respect of the work product completed by such third person. The
contractor may not assign in whole to any third person the contracted
construction project, or divide the whole contracted construction project into
several parts and separately assign each part to a third person under the guise
of sub-contracting.
The contractor is prohibited from sub-contracting any part of the project to an
entity not appropriately qualified. A sub-contractor is prohibited from further
sub-contracting its contracted work. The main structure of the construction
project must be constructed by the contractor itself.
Article 273 Major State Construction Projects
A contract for a major state construction project shall be concluded in
accordance with the procedure prescribed by the state and in compliance with the
state-approved documents such as the investment plan and feasibility studies
report, etc.
Article 274 Terms of Contract for Survey or Design
A contract for survey or design includes terms such as the time limit for
submission of the relevant basic information and documents (including budget
estimate), the quality requirements, fees, and other conditions of cooperation,
etc.
Article 275 Terms of Construction Contract
A construction contract includes terms such as the scope of the project, the
construction period, the time for commencement and completion of any work to be
commissioned in the interim, the quality of the project, the cost of the
project, the time for delivery of technical materials, the responsibilities for
the supply of materials and equipment, the appropriation of funds and settlement
of account, inspection upon completion of the project, the scope and period of
quality warranty, and cooperation between the parties, etc.
Article 276 Supervision of Construction Project
Where the construction project is subject to supervision, the developer shall
enter into an agency appointment contract for project supervision with a project
supervisor in writing. The rights, obligations and associated legal liabilities
of the developer and supervisor shall be prescribed in accordance with the
provisions hereof concerning agency appointment contracts and the provisions of
other relevant laws and administrative regulations.
Article 277 Developer's Right to Inspect
Provided that the developer does not interfere with the normal operation of the
contractor, it may inspect the progress and quality of the work at any time.
Article 278 Concealed Work
In the case of concealed work, the contractor shall give the developer notice
for inspection prior to concealment. Where the developer fails to timely conduct
inspection, the contractor may extend the relevant project milestones, and is
entitled to claim damages for work stoppage or work slowdown, etc.
Article 279 Inspection of Completed Project; No Use Prior to Inspection
Upon completion of the construction project, the developer shall conduct
acceptance inspection according to the construction drawings and specifications,
and in accordance with the rules of construction inspection and quality
inspection standard prescribed by the state. Once the construction project has
passed the acceptance inspection, the developer shall pay the prescribed price
and accept the construction project.
The completed construction project may be put into use only after it has passed
the acceptance inspection; if the construction project has not been inspected or
has failed the inspection, it may not be put into use.
Article 280 Developer's Remedies in Case of Non-compliant Survey or Design
Where the developer sustains any loss from construction delay due to
non-compliance of the survey or design or due to delayed delivery of the survey
or design documents, the surveyor or the designer shall continue to improve the
survey or design, reduce or forgo the survey fee or design fee, and pay damages.
Article 281 Developer's Remedies in Case of Non-conforming Construction
Where the construction project fails to meet the prescribed quality requirements
due to any reason attributable to the constructor, the developer is entitled to
require the constructor to repair, re-construct or make alteration free of
charge within a reasonable time. Where delivery of the project is delayed due to
such repair, re-construction or alteration, the constructor shall be liable for
breach of contract.
Article 282 Contractor Liable for Personal and Property Damage
Where the construction project caused personal injury and property damage during
its reasonable usage period due to any reason attributable to the contractor,
the contractor shall be liable for damages.
Article 283 Contractor's Remedies in Case of Developer's Failure to Provide
Necessary Conditions
Where the developer fails to provide raw materials, equipment, site, funds, or
technical information at the prescribed time and in accordance with the
contractual requirements, the contractor may extend the relevant project
milestones, and is entitled to claim damages for work stoppage or slowdown, etc.
Article 284 Contractor's Remedies in Case of Project Interruption Due to Reasons
Attributable to Developer
If an ongoing project is stopped or delayed due to any reason attributable to
the developer, the developer shall take the appropriate measures to make up or
mitigate the loss, and shall indemnify the contractor for its loss and
out-of-pocket expenses arising from resulting work stoppage, slowdown,
reshipment, re-dispatch of mechanical equipment, and excess inventory of
materials and assemblies, etc.
Article 285 Surveyor's Remedies in Case of Developer's Failure to Cooperate
Where in the course of survey or design, any repeating work, work stoppage or
change of design occurs due to the developer's change of plan, the incorrect
information provided by it, or its failure to provide the working conditions
necessary for the survey or design at the prescribed time, the developer shall
increase the fees in light of the actual amount of work done by the surveyor or
designer.
Article 286 Contractor's Remedies in Case of Developer's Failure to Pay Price
If the developer failed to pay the price in accordance with the contract, the
contractor may demand payment from the developer within a reasonable period.
Where the developer fails to pay the price at the end of such period, the
contractor may enter into an agreement with the developer to liquidate the
project, and may also petition the People's Court to auction the project in
accordance with the law, unless such project is not fit for liquidation or
auction in light of its nature.
The construction project price shall be paid in priority out of proceeds from
the liquidation or auction of the project.
Article 287 Provisions Governing Contracts of Hired Works Applicable
A matter not provided for in this Chapter shall be governed by the relevant
provision governing contracts of hired works.
Chapter Seventeen Carriage Contracts
Section One General Provisions
Article 288 Definition of Carriage Contract
A carriage contract is a contract whereby the carrier carries the passenger or
cargo from the place of departure to the prescribed destination, and the
passenger, consignor or consignee pays the fare or freightage.
Article 289 Common Carrier May Not Deny Reasonable Carriage Requirement
A common carrier may not deny any normal and reasonable carriage requirement by
a passenger or consignor.
Article 290 Obligation of Carrier to Carry in Safe and Timely Manner
The carrier shall safely carry the passenger or cargo to the prescribed
destination within the prescribed time or within a reasonable time.
Article 291 Obligation of Carrier to Travel by Prescribed Route
The carrier shall carry the passenger or cargo to the prescribed destination by
the prescribed route or the normal route.
Article 292 Passenger's Remedies in Case of Carrier's Failure to Travel by
Prescribed Route
The passenger, consignor or consignee shall pay the fare or freightage. Where
the carrier failed to carry the passenger or the cargo by the prescribed or
normal route, thereby increasing the fare or freightage, the passenger,
consignor or consignee may refuse to pay any increased portion thereof.
Section Two Passenger Carriage Contracts
Article 293 Formation of Passenger Carriage Contract
A passenger carriage contract is formed upon the carrier's delivery of the
passenger ticket to the passenger, except otherwise agreed by the parties or
provided by the relevant usage.
Article 294 Carrier's Remedies in Case of Passenger's Failure to Pay Fare
The passenger shall board the mode of transportation with a valid passenger
ticket. If the passenger boards without a ticket, travels beyond the prescribed
destination, boards a class higher than the prescribed class, or boards with an
expired ticket, he shall pay the fare retroactively, and the carrier may charge
additional fare in accordance with the relevant stipulations. Where the
passenger fails to pay the fare, the carrier may refuse to carry.
Article 295 Passenger's Failure to Board on Time
Where the passenger is unable to board the mode of transportation at the time
prescribed on the passenger ticket due to any reason attributable to himself, he
shall carry out the formality for ticket refund or reschedule within the
prescribed period. Where the passenger delays in carrying out the relevant
formality, the carrier may refuse to refund the fare, and is no longer obligated
to carry such passenger.
Article 296 Carry-on Luggage
In the course of carriage, the passenger's carry-on luggage shall be within the
prescribed limit. Where his luggage exceeds the prescribed limit on carry-on
luggage, the additional luggage shall be checked in.
Article 297 Boarding with Prohibited Item
The passenger may not carry in person, or place in his luggage, any hazardous
material which is flammable, explosive, toxic, corrosive, or radioactive, etc.,
or possibly endangers people or property on board, or an otherwise prohibited
item.
Where the passenger violates the previous paragraph, the carrier may unload,
destroy or turn over to the relevant authority the prohibited item. Where the
passenger insists on carrying in person or placing in his luggage the prohibited
item, the carrier shall refuse to carry.
Article 298 Carrier's Obligation to Inform
The carrier shall timely inform the passenger of any major cause preventing it
from normal carriage, as well as precautions relating to transportation safety.
Article 299 Passenger's Remedies in Case of Delay
The carrier shall carry the passenger according to the time and carrier number
prescribed on the passenger ticket. Where the carrier delays in carriage, it
shall, upon request by the passenger, either reschedule or refund the fare.
Article 300 Passenger's Remedies in Case of Unilateral Change of Mode of
Transportation by Carrier
Where the carrier unilaterally changed the mode of transportation, thereby
lowering the standard of service, it shall, upon request by the passenger,
refund or reduce the fare; where the service standard is enhanced as a result,
no additional fare shall be charged.
Article 301 Carrier's Obligation to Assist Passenger
In the course of carriage, the carrier shall use its best effort to assist any
passenger who has a medical emergency, is in labor or encounters a dangerous
situation.
Article 302 Carrier Liable for Injury of Passenger; Exceptions
The carrier shall be liable for damages in case of injury or death of the
passenger in the course of carriage, except where such injury or death was
attributable to the passenger's own health, or the carrier has established that
such injury or death was caused by the passenger's intentional misconduct or
gross negligence.
The provisions in the previous paragraph apply to a passenger who is exempted
from buying a ticket or holds a discount ticket pursuant to the relevant
stipulations, or who is permitted by the carrier to board without a ticket.
Article 303 Provisions Governing Loss of Passenger's Luggage
Where the passenger's carry-on luggage was damaged or lost in the course of
carriage, the carrier shall be liable for damages if it was at fault.
Where the passenger's check-in luggage was damaged or lost, the relevant
provisions governing cargo carriage apply.
Section Three Cargo Carriage Contracts
Article 304 Consignor's Obligation to Inform; Liability for Misrepresentation
In consigning its cargo, the consignor shall correctly provide the carrier with
the name of the consignee or the consignee to whose order the cargo is
deliverable, as well as any necessary information relating to carriage of the
cargo, such as the name, nature, weight, and quantity of the cargo and the place
for taking delivery thereof.
Where the carrier sustains any loss due to the consignor's provision of false
information or omission of any material information, the consignor shall be
liable for damages.
Article 305 Certain Cargo Carriage Subject to Approval
Where carriage of the cargo is subject to any procedure such as approval or
inspection, etc., the consignor shall submit to the carrier the relevant
documents evidencing completion of such procedure.
Article 306 Packing of Cargo in Prescribed Manner
The consignor shall pack the cargo in the prescribed manner. Where a packing
method was not prescribed or clearly prescribed, Article 156 hereof applies.
Where the consignor violates the previous paragraph, the carrier may refuse to
carry.
Article 307 Carriage of Hazardous Materials
In consigning any hazardous material which is inflammable, explosive, toxic,
corrosive, or radioactive, etc., the consignor shall, in accordance with the
stipulations of the state governing the carriage of hazardous materials,
properly pack the hazardous material and affix thereon applicable signs and
labels for hazardous materials, and shall submit its name and nature as well as
related precautionary measures to the carrier in writing.
If the consignor violates the previous paragraph, the carrier may refuse to
carry, and may also take the appropriate measures to prevent loss at the
consignor's expense.
Article 308 Consignor's Right of Disposal Prior to Delivery
Prior to carrier's delivery of the cargo to the consignee, the consignor may
require the carrier to suspend the carriage, return the cargo, change the
destination or deliver the cargo to another consignee, provided that it shall
indemnify the carrier for any loss it sustains as a result.
Article 309 Taking Delivery of Cargo by Consignee
Upon arrival of the cargo, if the carrier knows of the consignee, it shall
timely notify the consignee, who shall timely take delivery. Where the consignee
delays in taking delivery, it shall pay expens