中国合同法英文版44640.doc

中国合同法英文版CONTRACT LAW OF P. R. INAAdopted and Promulgated by the Second Session of the Ninth National Peoples Congress on Mar 15, 1999. Translated piled by John Jiang Henry Liu GENERAL PRINCIPLES apter 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 disarging a relationship of civil rights and obligations. An agreement concerning any personal relationship su 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 su 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 disrt 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. apter 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 exange and electronic mail), etc. whi 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 brea 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 exange of an offer and an acceptance. Article 14 Definition of Offer An offer is a partys manifestation of intention to enter into a contract with the other party, whi shall ply with the following: (i) Its terms are specific and definite; (ii) It indicates that on acceptance by the offeree, the offeror will be bound thereby. Article 15 Invitation to Offer An invitation to offer is a partys 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 mercial advertisement, etc. is an invitation to offer. A mercial 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 bees effective when it reaes the offeree. When a contract is concluded by the exange 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 su 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 recipients systems is deemed its time of arrival. Article 17 Withdrawal of Offer An offer may be withdrawn. The notice of withdrawal shall rea 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 rea the offeree before it has dispated 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 reaes the offeror; (ii) The offeror lawfully revokes the offer; (iii) The offeree fails to dispat its acceptance at the end of the period for acceptance; (iv) The offeree makes a material ange to the terms of the offer. Article 21 Definition of Acceptance An acceptance is the offerees 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 Dispat of Acceptance An acceptance shall rea the offeror within the period prescribed in the offer. Where the offer does not prescribe a period for acceptance, the acceptance shall rea the offeror as follows: (i) Where the offer is made orally, the acceptance shall be dispated immediately, unless otherwise agreed by the parties; (ii) Where the offer is made in a non-oral manner, the acceptance shall rea the offeror within a reasonable time. Article 24 mencement of the Period for Acceptance Where an offer is made by a letter or a telegram, the period for acceptance mences on the date shown on the letter or the date on whi the telegram is handed in for dispat. If the letter does not specify a date, the period mences on the posting date stamped on the envelop. Where the offer is made through an instantaneous munication device su as telephone or facsimile, etc., the period for acceptance mences once the offer reaes the offeree. Article 25 Contract Formed on Effectiveness of Acceptance A contract is formed once the acceptance bees effective. Article 26 Effectiveness of Acceptance A notice of acceptance bees effective once it reaes the offeror. Where the acceptance does not require notification, it bees 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 exange 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 rea the offeror before or at the same time as the acceptance. Article 28 Late Acceptance An acceptance dispated 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 Tranission of Acceptance If the offeree dispated its acceptance within the period for acceptance, and the acceptance, whi would otherwise have reaed the offeror in due time under normal circumstances, reaes 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 ange The terms of the acceptance shall be identical to those of the offer. A purported acceptance dispated by the offeree whi materially alters the terms of the offer constitutes a new offer. A ange in the subject matter, quantity, quality, price or remuneration, time, place and method of performance, liabilities for brea of contract or method of dispute resolution is a material ange to the terms of the offer. Article 31 Acceptance Containing Non-material anges An acceptance containing nonmaterial anges 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 su anges or the offer indicated that acceptance may not contain any ange 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 exange of letters or electronic messages, one party may require execution of a confirmation letter before the contract is formed. The contract is formed on execution of the confirmation letter. Article 34 Place of Formation; Electronic Messages The place where the acceptance bees effective is the place of formation of a contract. Where a contract is concluded by the exange of electronic messages, the recipients 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, su 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 purase 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 splying 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 partys attention to the provision(s) whereby su partys liabilities are excluded or limited, and shall explain su provision(s) on request by the other party. Standard terms are contract provisions whi were prepared in advance by a party for repeated use, and whi 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 splying su 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, su term shall be interpreted in accordance with mon sense. If the standard term is subject to two or more interpretations, it shall be interpreted against the party splying 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 splying false information; (iii) any other conduct whi 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 whi 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 su trade secret, thereby causing loss to the other party, it shall be liable for damages. apter Three: Validity of Contracts Article 44 Effectiveness of Contract A lawfully formed contract bees effective on its formation. Where effectiveness of a contract is subject to any procedure su as approval or registration, etc. as required by a relevant law or administrative regulation, su 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 bees effective once su condition is satisfied. A contract subject to a condition subsequent is extinguished once su 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 mencement bees effective at su time. A contract subject to a time of expiration is extinguished at su time. Article 47 Contract by Person