Contract Law of China (in English) (Chinese law Book 4)

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The Official Journal can be searched by keywords and publication date, but the compilation of laws itself is not searchable, and also not up to date. This bilingual website contains laws and regulations on education and networking technology. It also offers extensive statistical information on the Chinese education system. This site contains directory information about the Court and also provides databases on statutes and regulations, along with the court's own interpretations. Specifically, the Chinese version of the website provides a legal database for national and local law and regulations, treaties, policies, and judicial interpretations from the Supreme Court.

Access to the service is free, and the laws and regulations are available in English. However, court judgments are not particularly available on this site. The database can only be searched by using keywords. This free database contains a comprehensive collection of national laws and regulations, local laws, and treaties, which can be searched by keywords and promulgation dates. Hyperlink capacity is also available for relevant laws. The most authoritative section in this database is the one that contains the interpretations of the Supreme People's Courts and the Supreme People's Procuratorate.

China Internet Information Center - This website is an "authorized government portal site to China" and highly resembles an encyclopedia. This site covers topics such as politics, culture, science and technology, and various economics aspects of China, which is available in both English and Chinese.

This official legal online service can be found at the website of the Department of Justice of the HKSAR and is open to the public for free.

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The Current Ordinances section corresponds to the printing version as published in the loose-leaf edition. In the International Agreements section, both bilateral agreements and multilateral treaties are listed. This database provides the most current version of the laws of the Hong Kong SAR, and is updated on an average of two weeks after the publication of the Gazette.

The Government of the Hong Kong Special Administrative Region Gazette - This is an official site providing full-text access, but the databases are not archived; only the latest issue of the Gazette is available. The database contains the complete laws of Macao and some national laws of the PRC in Chinese and Portuguese, with some documents provided in English. It is archived and kept up-to-date.

It also provides introductions and states arbitration rules for each agency. It also provides the full text of the Security Law of the PRC and statistical data, but the databases are neither searchable nor up to date. It offers a compilation of statistical matters and related laws and regulations, but is not searchable. The databases are searchable. The online database allows free access for full text. Keyword searching is available. Contents are archived for about three months. China Law and Practice - This is the electronic version of the journal under the same title by Asian Law and Practice.

The commercial journal offers the most current reports, translations, and commentaries on the new laws and legal development in China, and has multiple search functions. People's Daily mirror site - This is the official paper of the Party and contains reports on legislation and legal developments. New laws are usually first released in full-text in this newspaper. The paper is archived and the database provides multiple search options. The Review takes on a very proactive view on China's involvement in the WTO and how it impacts areas including dispute settlement proceedings, international and comparative law, legal economics and policy.

Further, to the extent relevant to WTO covered agreements or other trade accords for that matter , the Review deals with foreign investment, copyrights and other trade-related issues. This site covers general information about China. A section on the "Laws and Regulation of the PRC" is also included, as well as directorial information on governmental agencies and judicial institutions. However, the information is not current and no search functions are available.

China - This Chinese legal research guide, by the Law Library of Congress, provides a general introduction to China's legal and political system, and also includes web and print resources for legal research. Chinese Legal Research at the University of Washington - This research guide is very user friendly by organizing each of the separate topics into a graph, but the downside is there isn't a lot of information provided about each of the resources it introduces. People's Republic of China Legal Research - The Harvard Law School Library produced research guide is much like this guide and provides some of the best resources for Chinese legal research in both English and Chinese.

It is also very up to date. A Survey by Zhai Jianxiong is a good research guide on the Chinese judicial system. China International Book Trade Corporation - This website contains good bibliographic information on publications in China, including Chinese law books. China Books and Periodicals - This is a San Francisco based book jobber that accepts subscriptions for Chinese legal serials. The website offers detailed bibliographic information on the publications. Read also more guides on this topic: The Rule of Law in China: Translation Tools Youdao Dictionary - Youdao dictionary is now one of the most widely used online translation softwares for both desktop and mobile users in translation between English and Chinese.

Translations are based on the data that comes from the Youdao search engine and massive data mining, as well as natural language processing, therefore most translations of legal terms are fairly accurate. The software has all of the original features of an online dictionary including acoustic translation, smart screen word identification, real-time synchronization with network up-to-date vocabulary, and other word look-up features.

It can also translate the text in the picture using OCR technology. Youdao Human Translation - is another service that Youdao provides to users for a fee. Users can select the "fast translate" option and label certain requirements for the translation, and after inputting the text, there is an automatically generated price and time frame of when the final product will be ready.

Customers can also choose from the "document translation" tab and upload the documents they need to translate, and select the options provided in order for Youdao to provide a better translation. Lawyee - As one of the top three legal databases in China, Lawyee is advertised as having the largest Chinese database in the world in several areas, including for Chinese legal cases and categorized sample contracts with comprehensive risk analysis attached. Compared with Chinalawinfo, it is also updated at a slower pace.

It also offers an e-mail service, which delivers all new enacted national laws, administrative regulations, judicial interpretation, and decisions by the ministries for no charge. The databases are archived and searchable. The section on "Articles and Treatises" is available in full text and represents the most recent legal research.

Another highly acclaimed database, "Civil Litigation Court Case", collects cases from all courts including the Supreme Court, District Court, and Bankruptcy Court from to the present. The database can be accessed by various search approaches via its website and should be viewed with the Big 5 code.

China Laws - This Shanghai-based commercial online service provides a collection of comprehensive legal databases and resources.

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It is updated regularly and employs a basic search method. China Judge - This webpage contains both laws and research articles and books. It can be accessed freely and is updated regularly. This site compiles resources on Chinese legal study and practice, including judicial reports, a brief catalog of the major law journals, and legal research articles. The most valuable part of the database is its collection of full-text legal anthologies written by prominent jurists in China.

LawXP - LawXP is a Beijing-based national commercial website that serves as a legal database and many legal resources for legal practitioners as well as the general public. Itslaw - ItsLaw is another Chinese legal case database website that boasts over 39,, cases, recommendations for legal professionals in the country, and laws. It contains information in areas of anti-bribery, investigative supervision, and crime investigation. It maintains a vast collection of the major national laws, case analyses, and the working reports of the National People's Congress, a feat rarely accomplished in other databases.

The databases, however, are not searchable. Ceilaw - This website is closely affiliated with the State Council and launched in It is mostly available only to Chinese government agencies as an important source for Chinese rules and regulations dated back to Its legal online information system contains the most comprehensive and authoritative Chinese law databases, which include both national and local laws and regulations, case reports, and treaties. Chinese Lawyer Association - The Chinese Lawyer Association was founded in under the guidance of the judiciary department.

Its official website includes information on Chinese laws, Chinese law firms, and industry standards for the legal profession in China. It was originally the official paper of the Ministry of Justice before it was taken over by the Party in the mid's and became an influential newspaper. The newspaper is archived up to 6 months online and is searchable.

Its most valuable column is the "Release of New Laws", which publishes new laws in full text and also gives legal interpretation from the legislature, judicial, and administrative agencies. This newspaper is a good resource for finding the new decisions of the Supreme People's Court, as well as its judicial interpretations and policies. The contents of the newspaper can be searched. The People's Procuratorate Daily - The e-version of the daily paper of the People's Procuratorate only archives the news for the last three years.

The Webpages of Universities and Research Libraries The websites by higher education and research institutions, along with their libraries, are the best gateway to access law related information and materials. These websites are usually maintained by professional Internet experts, whose levels of expertise lead to a privileged intellectual environment. Thus, they are good starting points to getting general and background information on Chinese legal research without surfing the web from scratch. Following are a few examples of these websites: Users can conduct searches under the tab laws and regulations, or choose from the categorized legal topics provided on the home page.

Wusong Reading - Wusong Reading is a very practical mobile software that provides clients with a wide range of law related websites, all sorted by subject area. Clients can also conveniently use the application to get access to the latest legal news. Wusong Reading is not accessible via desktop, therefore, some inconvenience can occur since most legal research is not conducted through a phone and some websites did not optimize their webpage to have mobile friendly view.

Library Online Catalogs - This site contains comprehensive links to all online library catalogs nationwide. In China, the majority of law libraries have adopted the library automation system.

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Card catalogs have been converted into electronic formats with an integrated library system developed by either domestic or foreign vendors. Tsinghua University is on the Innovative system, but its law and social science collections are not as comprehensive as those of the Beijing University Library or Beijing Library. Ministry of Education - The entry for " library " probably contains the most complete linkage to the other online catalogs from both public and academic libraries. Directory of Legal Publishers and Law Firms The websites of professional legal publishers that are owned by the state offer exhaustive bibliographic information on the law books they publish.

They also provide gateway service by linking law and legal publishing related Internet resources. It is coded in Big 5 format. It is known as the "super app" because people not only use to communicate, pay their bills, but also conduct legal research. It has grown to be one of the main secondary resources for one to obtain background information about a legal subject area at the start of legal research. Wechat users can use keyword search to subscribe to different channels that focus on different legal practice areas.

Subsequently, periodic articles and updates will be sent to the subscriber's Wechat. In addition, legal scholars and practitioners join Wechat groups with a specific legal focus that answer and discuss specific legal questions the members have. It is worth mentioning that the Wechat channels and articles can now be searched on a PC via the Sogou search engine. Thus, one is no longer limited to access to subscription articles on a legal topic on a phone.

Features of Online Sources and Search Strategies This chapter discusses helpful strategies to finding information on Chinese online legal resources. Before doing so, we will first summarize and evaluate the resources described in Chapter 1. This chapter also illustrates a pathfinder for a hypothetical research topic by utilizing a combination of information and resources. There are two sides to the meaning of the word "completeness" as we use it. The first meaning deals with reviewing the contents of the database or Internet resource to determine whether they are exhaustive and systematically structured.

For instance, does the commercial online service include both primary and secondary sources or does it contain only one component? Are the contents of the database complete or rudimentary? The second meaning pertains to the format of the information contained in the database or Internet resource. For example, does the database contain only digests and abstracts or does it contain information in full text? As described in Part One, Chapter 1, the majority of Chinese commercial databases contain a fairly comprehensive coverage of the statutory laws of the PRC from to the present in full text and are also updated regularly.

Some databases also contain local laws and regulations. However, the level of completeness of each online service might vary. The official versions of legal materials are provided by the government, which is also considered to be the most reliable source. However, a government information mechanism, like the Government Printing Office in the United States, has not yet been established in China. Furthermore, government websites are not well developed in English.

Although these sites do provide some official information, the information found therein is often scattered, sporadic, and most definitely not current. As a result, one has to rely on commercial online resources and printed materials. Another major drawback to current Chinese online resources is their lack of secondary sources i. Moreover, English online services usually have a smaller scope in coverage than their Chinese counterparts. Another problem is the quality of translation. In light of these circumstances, commercial resources should be given first priority.

Authorit y According to the laws of the PRC, legal compilation and electronic publishing should be examined and approved before they can be published by a specific government agency as assigned by the legislature. However, for research and study purposes, non-official publishers such as research institutions and commercial publishers are also allowed to publish law compilations. Due to the lack of adequate quality control on legal publishing, the accuracy and authority of the commercial online databases is sometimes questioned.

Furthermore, law databases produced by volunteers or less qualified commercial agencies also undermine the reliability and authenticity of online legal resources. For secondary sources and finding tools, websites produced and maintained by prominent academic and research institutions, which possess intellectual and technical preponderance, are the most informative and reliable, especially for gateway services. Access Capabilities and the Electronic File Format Another defect is the primitiveness of the search function, which then undermines the retrieval of information from the databases.

Advanced search functions or the Boolean search are still missing. For example, CEI online databases can only be searched by using a combination of the document names and their dates of enactment. Despite the fact that the service provides complete search functions for its CD-ROM products, an advanced Boolean search or Natural Language search algorithms are still not yet implemented with the web version. Few Chinese online services offer the PDF format; instead, they use the MSW format, even though the former is closer to the format of the original print document, and thus more desirable.

Access is another technical issue caused by the refusal of the online services to adopt the more efficient IP-based access to ensure business profits. The use of passwords is a very common practice that online services offer foreign users. With a sole password and invisible "login" and "logout" algorithms in the web layout, the passwords are often locked erroneously. Such pure technical defects are some main restraints to access.

Output or Downloading Although downloading from online databases can be carried out with a Chinese reader application, trashy characters due to non-standardized coding are sometimes unavoidable. Reload or refresh is needed each time you change the configuration for different Chinese coding systems. Downloading directly to the printer requires a printer equipped with a big buffer. Strategies of Online Legal Research First, we have to keep in mind that a corresponding electronic format is not available for all Chinese legal materials, especially judicial information and secondary sources.

Although an increasing number of judgements are published regularly, to locate juridical materials, your first choice should still be the printed resources. Also, secondary and tertiary sources are not among the focus of Chinese legal publishers; therefore, it is harder to locate their electronic versions.

But as countries share civil law systems characteristics, the legal treatises by Chinese jurists are proliferating, and even full text access is freely available. See the legal anthology sections of Chinalawinfo and China Judge. Secondly, one has to be very careful in selecting which databases to use from the numerous accessible free databases. Some of them are not up to date.

When searching for databases, we need to know the following information: For Chinese legal online resources, the producers or providers of the databases are the most important components in determining their authority and reliability. For primary materials, you should first go to commercial or government resources. For secondary materials, some free database sites could also be reliable and valuable. In China, the principles of civil law are provided for by article 4 to article 9 of The General Provisions of In particular, the principles of civil law play an essential role in the trial of civil cases in two aspects: The principle of equality suggests that all civil subjects, no matter whether they are legal persons, natural persons, or unincorporated organizations, no matter how large the legal person's scale is or how rich it is, no matter whether a natural person is a man or woman, old or young, and poor or rich, no matter what business an unincorporated organization is doing, when they are engaged in civil activities, they are equal in legal status among one another, and their legitimate rights and interests are equally protected by law.

It refers to the tenet that, based on the meeting of minds, parties may enjoy rights and assume obligations through the conclusion of a contract, which is composed of four layers of meaning: The principle of private autonomy was developed in a laissez-faire economy of the 19th century, which had contributed considerably to the liberation of individuals from the bounds imposed on by feudal identities and laws, the abolishment of the doctrine of the chartered corporation, the protection of private property, the promotion of the freedom of business, the protection of individual freedom and dignity, and the development society, economy and culture.

Strict adherence to the principle of private autonomy would ignore such imbalances and would fail to respect the free will of the weaker party. Hence, the state often intervenes in the fields of labor relationships and consumption relationships by enacting labor and consumer protection laws and regulations, in order to restore the imbalances and respect the true will of the weaker party. In a word, the freedom of behavior is necessarily accompanied by the responsibility for the consequences of such behavior. The principle of fairness requires that when they are engaged in civil activities, civil subjects should determine the rights and obligations of each party justly, equitably and reasonably in light of the notion of fairness, and should be responsible for the consequences of civil activities in a fair way.

Article 24 of The Tort Liability Law of reads as follows. This is because it is a term that is full of strong moral elements, changing with times. This principle consists of two sub-principles, namely the principle of adherence to law and the principle of public order and good morals. These two sub-principles are closely associated with each other. Hence, they are provided for in the same article - article 8 of The General Provisions of - as follows.

A jus dispositivum is a legal provision that can be dispensed with or amended by mutual agreements of the parties. The other way around, a jus cogens is a compelling and mandatory legal provision that cannot be dispensed with or amended by the free will of the parties. However, individual freedom is not without limits. Although civil law is private law in nature, it is also aimed at safeguarding the basic social order of life and production and protecting the basic interests of the state.

When reading the above article 91 closely, it becomes clear that all the seven circumstances except for item 2 shall terminate a contract with a prospective effect, either because the purpose of the contract has been realized or at least has not been frustrated items 1 , 3 , 4 and 5 or because it becomes meaningless or unnecessary for the contract to exist items 6 and 7. However, after the contract is concluded, circumstances may change rapidly way beyond expectations, which may render the performance of the contract impossible or unnecessary or may frustrate the purpose of the contract.

In such cases, strict adherence to the principle of " pacta sunt servanda " would not be of benefit to the parties concerned or would even damage the public interest. Cancellation of a contract can be based on either an agreement or statutory provisions. Article 93 of The Contract Law provides, " The parties to a contract may cancel a contract if they reach an agreement.

The parties may agree upon conditions under which either party may cancel the contract. Upon satisfaction of the conditions, the party who has the right of cancellation may cancel the contract. Article 94 provides for the causes of statutory cancellation of a contract, which reads as follows. The legal effect of cancellation of a contract is provided in article 97 of the aforesaid law, which states as follows. As far as the interpretation of the said article 97 is concerned, two major doctrines have developed by Chinese contract law scholars, i.

The direct effect theory is currently the dominant doctrine. According to the direct effect theory, the cancellation of a contract will terminate the contract retrospectively as if it were "void" ab initio.

Availability of Specific Remedies in Chinese Contract Law

Specifically, if the subject matter tendered is a chattel movable property , then the possession of the chattel shall be transferred to the original owner; if it is a real estate immovable property tendered through registration, then the registration shall be corrected. Absent such a basis e. Nonetheless, the direct effect theory is subject to some qualifications. On the one hand, some special clauses of the contract are not affected by the cancellation. Article 98 of the said law provides, " The termination of rights and obligations under a contract shall not affect the effect of clauses that related to the final settlement of accounts and winding-up.

In cases where it is impossible or unnecessary to make restitution in kind, the cancellation of a contract will not only have a prospective effect. Hence, the said article 97 makes it clear that when to make restitution in kind is possible due to the "circumstances of performance or the nature of the contract", one party may demand the other party to "take other remedial measures". Those terms need to be explained in detail as follows. In contrast, the compromised theory holds that the cancellation of a contract does not have a retrospective effect.

Specifically, it suggests of two layers of meaning: The original owner of a property can only regain the ownership of the property if its claim for restitution is successful. Now let's discuss the similarities and differences between the above two theories. In the event that the contract has not been performed yet, there is almost no difference between them.

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Both suggest that the cancellation of a contract in such a case only has prospective effect. However, in cases where the contract has been performed, the two theories differ significantly. The direct effect theory holds that in one-off contracts cancellation will have retrospective effect whereas the compromised theory says the opposite.

The key difference is concerned with the meaning of "restitution in kind". While the former theory regards restitution as a claim based on a real right, the latter treats it merely as a claim based on an obligatio. This difference has significant implications in at least two scenarios as follows:.

When taking into account all the aforementioned points, it seems that the direct effect theory keeps a better balance than the compromised theory between the protection of ownership and the safety of transactions. The former tends to protect ownership unless third parties in good faith are involved, thus protecting the safety of transactions in a proportional way. In contrast, the latter may protect transactions even when third parties are in bad faith, thus making the protection of the safety of transactions in an excessive way.

This may exlain why the direct effect theory is the dominant doctrine in China as far as the interpretation of article 97 of The Contract Law is concerned. From Wikibooks, open books for an open world. Target Readers This book is intended for readers who are interested in Chinese civil law. Citation Issues Citation of Primary Sources: Zhao Kezhi State Councilor. Xi Jinping Deputy Leader: Central Foreign Affairs Commission Director: Xi Jinping Deputy Director: Administrative divisions Hukou system Family planning Ethnic minorities. Tax system Labor contract law Labor relations Food safety Intellectual property.

Retrieved from " https: Laws of China Labor relations in China Chinese labour law. Interlanguage link template link number All articles with unsourced statements Articles with unsourced statements from July Views Read Edit View history. In other projects Wikisource. This page was last edited on 2 June , at By using this site, you agree to the Terms of Use and Privacy Policy.

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Contract Law of China (in English) (Chinese law Book 4) Contract Law of China (in English) (Chinese law Book 4)
Contract Law of China (in English) (Chinese law Book 4) Contract Law of China (in English) (Chinese law Book 4)
Contract Law of China (in English) (Chinese law Book 4) Contract Law of China (in English) (Chinese law Book 4)
Contract Law of China (in English) (Chinese law Book 4) Contract Law of China (in English) (Chinese law Book 4)
Contract Law of China (in English) (Chinese law Book 4) Contract Law of China (in English) (Chinese law Book 4)
Contract Law of China (in English) (Chinese law Book 4) Contract Law of China (in English) (Chinese law Book 4)

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