Introduction to Chinese Law

Lecture 9

Civil Law

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Issues

1. Concept of civil law in PRC

2. Drafting of a Civil Code

3. The General Principles of Civil Law (GPCL) 1986

4. Property Law 2007 and State Council Zhengshou Regulations 2011

5. Contract Law (Uniform Contract Law) 1999

6. Cases: “nail house” and forced demolition

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Civil Law v. Economic Law Civil law:

Between civil subjects with equal status: citizens, legal persons

General Principles of Civil Law (GPCL), Contract Law; Intellectual Property laws; Marriage Law; Adoption Law; Succession Law; Property Law (wuquan fa, 物權法 )

Economic law: Between the state and civil subjects, i.e. with unequal

status; Laws on macro-economic control: budget, audit, government

purchase, banking, pricing, taxation, etc. Laws on market regulation: consumer protection, product

liability, anti-monopoly, etc. Laws on national property and resources: land management,

mineral resources, water, agriculture, highway, etc. Laws on trade and investment.

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Civil Law v. Commercial Law

Two areas combined in China: fusion of civil law and commercial law ( 民商合一 ) Commercial laws are taken as special law departments of the

civil law. General principles of civil laws are equally applicable to

commercial laws.

Examples of commercial laws include: Company Law, Partnership Law, Securities Law, Insurance

Law, Law on Negotiable Instruments, Maritime Law, Bankruptcy Law, etc.

NB: The scope of commercial laws in civil law jurisdictions is much narrower than that in common law jurisdictions.

Cf. what you have learned or what you will be learning in Commercial Law (common law).

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Civil Code: Models Common law: loose, more concluded from cases French model: 2 main parts ( 編 )

Dealing with personal relationship and property relationship separately.

Jus Personam ( 债权 ): law of natural persons; family law; law of legal persons; inheritance law.

Jus Rerem ( 物权 ); general principles of the law of obligations; all types of contracts; intellectual property

German model: 7 parts (( 編 ) General principles; jus ad rerem, jus in personam;

contracts; torts; kindred; succession.

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Drafting Civil Code: Chapters

Law on personality: right to human dignity such as right to name, image, reputation, honor, and privacy

Property: ownership, mortgage, pledge, both real estate and personal goods

Family relations: marriage, adoption, succession Civil liabilities: contracts, torts, restitution Intellectual property law: copyright, trademark, patent

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General Principles of Civil Law 1986 (GPCL, 民法通則 )

General principles (Chapter 1). Civil law subjects:

Natural persons (Chapter 2) Legal persons (Chapter 3)

Civil law acts and agency (Chapter 4) Civil law rights (Chapter 5) Civil liabilities (Chapter 6) Statute of limitation, conflict of law, supplementary

provisions (Chapters 7, 8 and 9)

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GPCL: Principles

Equal status of parties; Fairness; Voluntariness; Exchange and compensation on the basis of equal

value ( 等價有償 ); Honesty and good faith; Relevant state policies on economic life.

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GPCL: Civil Law Subjects

Natural persons ( 自然人 ): citizens Individuals; and “Individual industrial-commercial business” ( 個體工商戶 ); the

“village changbao ( 承包 ) operation business; “partnership of

individuals” ( 個人合夥 ), popular in rural areas.

Legal persons ( 法人 ): organizations State enterprises ( 國營企業 ) Collective enterprises ( 集體所有制企業 ) Sino-foreign equity joint ventures ( 中外合資企業 ) Sino-foreign cooperative joint ventures ( 中外合作企業 ) Foreign capital enterprises ( 外資企業 ) Others: social organizations, economic associations, etc.

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GPCL: Civil Law Acts and Agency Civil law acts

E.g. contracting, marriage, making will, adoption, establishing a company, etc.

Definitions and conditions: A civil juristic act shall be the lawful act of a citizen or legal person to establish, change or terminate civil rights and obligations (Art.54). A civil juristic act shall meet the following requirements: (1) the actor has relevant capacity for civil conduct; (2) the intention expressed is genuine; and (3) the act does not violate the law or the public interest (Art.55).

Void or voidable acts Legal consequences

Agency Appointed by principals Arising by operation of law, such as custodian relations Designated by a court or other authorized entity, such as in liquidation

proceedings

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GPCL: Civil Law Rights

Personal Rights (or Personality Rights): 人身權 Right of life and health, right to name, etc.

Property Rights ( 財產權 ): in relation to ownership and use of property Neighboring rights ( 相邻權 ), right to use national

resources, mining rights, chengbao ( 承包 ) operational rights in rural areas, state enterprise operational rights, etc.

Contractual rights, rights arising from tortious acts and unjust enrichment Debts or obligations ( 債權 )

Intellectual Property Rights ( 知識產權 ) Copyrights, trademarks, patents, etc.

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Personal Rights Natural persons:

Rights of life and health, rights to name, portrait, reputation, honor, marriage, family.

Legal persons: Rights to name, commercial reputation and honor.

Other laws protecting personal rights Marriage Law (1950, 1980, and 2001): Law on Succession (1985) Adoption Law (1991) Law on Protection of Minors (1991, revised 2006) Law on Compulsory Education (1986, revised 2006) Law on Protection of Women’s Rights and Interests (1993)

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Property Rights Neighboring rights

Right to water supply, drainage, pass-way, etc.

Right to use national resources Exclusive to “state-owned” or “collective-owned” enterprises.

Mining rights Owned by the State, but may be granted to state-owned or

collectively owned units and citizens.

Chengbao operational rights (GPCL, Art 80) Also governed by the Law of Rural Land Contracts 2002 and

Property Law 2007 (wu quan fa). 30 years land use right to farmers for agricultural use. Can be renewed and extended (Property Law, Art 126) Can be inherited, subcontracted, leased, exchanged, assigned, or

used as capital investment.

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Property Rights (Cont’d)

State Enterprise Operational Rights (GPCL, Art 82) Also governed by the Law of Industrial Enterprises Owned by the

Whole People (1988) The property given to enterprise for management purpose. Now owned by enterprise as a legal person. Right to posses, use, and dispose of such property. Can be jointly owned, inherited, and transferred.

Urban Land Use Rights Also governed by the Law on the Management of Urban Real Estate

1994 and Property Law 2007 Urban land is owned by the State. Land use rights may be sold to developers for up to 70 years.

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Property Rights (Cont’d)

Property as security for credits (Art 89) Also governed by Law of Guarantee ( 擔保法 )1995

Five different forms of security Guarantee ( 保证 ); Deposit ( 定金 ); Mortgage on real property ( 抵押 ); Pledge of movable assets or intangible right ( 质押 ); Lien over assets of which the creditor has already taken possession (

留置 ).

All mortgages on real property must be registered At the local land department; Before they can be claimed against third parties.

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Civil Liabilities

Condition: Wrongful act committed, such as - Breach of contract; torts (negligence required) Specific tortious acts (negligence not required): such as product

liability, nuisance, occupier’s liability, torts by domesticated animals.

Remedies For personal rights: public apology; elimination of bad effects;

restoration of reputation; compensation, etc. For property rights: stopping infringement; return of property; repair

or replacement; compensation; etc.

Principles for attribution of liability Contractual damages and common torts are negligence-based. Specific torts (exclusively listed under GPCL) do not require

negligence or fault: strict liability based on law.

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Property Law 2007(wu quan fa 物權法 )

Scope Governing both personal property (movable) and real property

Three kinds of rights The right of ownership ( 所有權 ) Rights of use and enjoyment ( 用益權 ) Rights of security ( 擔保權 )

Equal protection for the state, collective and individual property, but State ownership plays a dominant role. (Art 3) Peasants do no have ownership over their land, and cannot use the

land as security. They can only lease the land in disposal of their rights of use and enjoyment.

CCP’s new rural reform plan in 2008: whether possible changes expected, such as endorsing “minor property rights housing” ( 小產權房 ) ? – not likely in immediate future.

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Property Law (Cont’d) Protection of urban house owners

Right to common areas (corridors, gardens, lift lobbies, etc). Owners’ right to appoint real estate management companies. Autonomous prolongation of the right to use of land for residential

purposes (70+ years: Art 149 of Property Law) Bona fide possession of movable property, i.e. goods ( 动产善

意取得制度） As long as the third party pays reasonable price and obtains the property

in good faith, he/she gets the property. The original owner can NOT claim back the property.

It is commonly seen when bailor who has no property rights over the goods however sells the goods without the permission of the owner. The owner may sue the bailor either by way of breach of the contract of bailment or under property torts actions.

Quite similar to the Buyer in Possession, Seller in Possession, nemo dat rule and market overt rule under SOGO (The Sale of Goods Ordinance of Hong Kong (Cap. 26) ) and common law jurisprudences.

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Problems waiting to be solved(a) Equal protection of public and private property: whether constitutional?

－ New law giving equal protection to private, state-owned and collectively-owned property: constitutionality issue at stake (“Gong Xiantian event”, 巩献田事件 ) – Art 12 of Con provides that socialist public property “inviolable” and that “the State protects socialist pubic property…”

(b) Absence of specific legislation to offer citizens a powerful legal weapon to fight back against infringements of property rights

－ e.g., unfair and under-compensated demolition of urban houses

(c) Absence of property registration system－ New law introducing a unified registration system in real estate

transactions to protect consumers’ rights, without specifying how to establish such system.

(d) Increasing disputes between home owners and the realty management agencies

－ New law introducing the concept of “differentiated owners” of buildings to help clarify rights of every household in a high-rise residential building over their own space, corridors, greenbelt and car parking lots of the compound but lacking provisions on dispute resolution involving owners and realty management agencies.

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Property Law (Cont’d) Strict limitation on the transfer of agriculture land to construction land ( 建

設用地 ) Prohibiting expropriation of collectively-owned land in violation of statutory power limit

and procedures (Art 43) and without public interest (Art 42) Problem with residential land ( 宅基地 ) and “minor property rights housing” ( 小產權

房 ): apartments built on collectively-owned land owned by villagers’ committees and sold to urban buyers

State expropriation of collectively-owned land ( 徵收 ) and demolition of urban residential houses and premises owned by institutions or individuals ( 拆遷 ) Illegal taking? Can only be justified for public interest (Art 42 of Property Law)

Controversy: expropriation often involves some extent of “commercial development”.

Must be justly compensated, e.g., to guarantee normal lives according to Property Law 2007 (Art 42, without exact wording of “just and fair compensation”) and State Council Regulations on Expropriation and Compensation of Houses on State-owned Land 2011 (ie., SC “Zhengshou” Regulations, Art 2 explicitly requires “fair/just compensation” - 公平補償 )

“Nail house” cases: e.g., “the coolest nail house” in Chongqing Forced demolition cases: e.g., Pan Rong ( 潘蓉 ) in Shanghai; Tang Fuzhen ( 唐福珍 ) in

Chengdu city of Sichuan province.

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Art 42 of Property Law “To meet the needs of public interests, collectively-owned lands, premises owned by entities and individuals or other real properties may be expropriated in accordance with the power scope and procedures provided by laws.

As for the expropriation of collectively-owned land, it is necessary to, according to law and in full amount, pay such fees as land compensation fees, placement subsidies, compensations for the above-ground fixtures of the lands and seedlings, arrange for social security fees for the farmers whose land is expropriated, secure their livelihood and safeguard their legitimate rights and interests.

As for the expropriation of the premises owned by entities and individuals or other real properties, it is necessary to make compensation for demolishment and relocation according to law and safeguard the legitimate rights and interests of the owners of the real properties expropriated; as for the expropriation of the individuals’ residential houses, it is necessary to safeguard the housing conditions of the owners of the houses expropriated.

No entity or individual may embezzle, misappropriate, privately share, detain or delay in the payment of the compensation fees for expropriation.”

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SC “Zhengshou” Regulations: General Principles & Responsible Agencies

Art 1: “This Regulation is formulated for purposes of regulating the expropriation of buildings on state-owned land and corresponding compensation, maintaining public interests and protecting the legitimate rights and interests of owners of the buildings to be expropriated.

Art 2: “Where a building of any entity or individual on state-owned land is expropriated for public interest, the owner of the expropriated building (the “owner”) shall be fairly compensated.”

Art 3: “The principle of ‘democratic decision-making, due process and open results’ shall be followed in the building expropriation and compensation.”

Art 4: “The people’s government at the city or county level shall be responsible for the building expropriation and compensation within its administrative region. The building expropriation department as determined by the people’s government at the city or country level (the “building expropriation department”) shall organize and implement the building expropriation and compensation within its administrative region.”

Art 5: “The building expropriation department may designate a building expropriation implementing entity to undertake the specific work on building expropriation and compensation. A building expropriation implementing entity shall not operate for profits. The building expropriation department shall oversee the building expropriation and compensation activities of a building expropriation implementing entity within the authorized scope, and assume the legal liabilities for the consequences of such activities.”

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SC “Zhengshou” Regulations: Expropriation Decisions

Art 8: “Where, for public interests such as safeguarding the national security and promoting the national economic and social development, it is necessary to expropriate a building under any of the following circumstances, the people’s government at the city or county level shall make a decision to expropriate the building:(1) necessary for national defense and foreign affairs;(2) necessary for the construction of energy, transportation, water and other infrastructures as organized and implemented by the government;(3) necessary for a public cause such as science and technology, education, culture, health, sports, environment and resource protection, disaster prevention and mitigation, protection of cultural relics, social welfare or municipal utilities as organized and implemented by the government;(4) necessary for the construction of a social security housing project as organized and implemented by the government; (5) necessary for the rebuilding of an old urban area where dilapidated buildings concentrate and infrastructure lags behind as organized and implemented by the government according to the relevant provisions of the Urban and Rural Planning Law; or(6) necessary for any other public interest as prescribed by a law or administrative regulation.

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SC “Zhengshou” Regulations: Compensation Plans

Art 10: “The building expropriation department shall draft an expropriation and compensation plan and report it to the people’s government at the city or county level. The people’s government at the city or county level shall organize the relevant departments to demonstrate the expropriation and compensation plan and publish it for public opinions. The period for solicitation of public opinions shall be no less than 30 days.”

Art 11: “The people’s government at the city or county level shall publish in a timely manner the public opinions solicited and the amendments made according to the public opinions. Where buildings need to be expropriated due to the rebuilding of an old urban area, if the majority of the owners consider that the expropriation and compensation plan does not conform to the provisions of this Regulation, the people’s government at the city or county level shall organize a hearing attended by the owners and the representatives of the public, and amend the plan according to the results of the hearing.”

Art 14: “An owner against a building expropriation decision made by the people’s government at the city or county level may apply for administrative reconsideration or file an administrative lawsuit according to law.”

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SC “Zhengshou” Regulations: Contents & Types of Compensation

Art 17: “The compensation granted to an owner by the people’s government at the city or county level which makes a building expropriation decision shall include:(1) compensation for the value of the building expropriated; (2) compensation for the relocation or temporary settlement resulting from the building expropriation; and(3) compensation for the production or business interruption losses resulting from the building expropriation.The people’s government at the city or county level shall formulate subsidization and incentive measures to give subsidies and incentives to the owners.”

Art 19: “The compensation for the value of the building expropriated shall not be less than the market price of real estate similar to the building expropriated on the date of announcement of the building expropriation decision. The value of the building expropriated shall be assessed by an eligible real estate price assessment institution according to the assessment measures for building expropriation. An owner who opposes to the assessed value of the building to be expropriated may apply to the real estate price assessment institution for reassessment. An owner who opposes to the reassessment result may apply to the real estate price assessment expert committee for appraisal…”

Art 21: “An owner may choose either monetary compensation or exchange of titles.”

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SC “Zhengshou” Regulations: Compensation Agreement and Decision

Art 25: “The building expropriation department and an owner shall, according to this Regulation, enter into a compensation agreement on the method, amount and time of payment of compensation, location and area of the building provided for exchange of titles, relocation fees, temporary settlement fees or temporary dwelling, production or business interruption losses, time limit for relocation, transition manner, transition period and other matters. After a compensation agreement is signed, if one party fails to perform any obligation under the compensation agreement, the other party may file a lawsuit according to law.”

Art 26: “If a compensation agreement cannot be reached by the building expropriation department and an owner within the contracting period as determined in the expropriation and compensation plan, or the owner of the building to be expropriated is unclear, the building expropriation department shall report it to the people’s government at the city or county level which makes the building expropriation decision for making a compensation decision under the expropriation and compensation plan in accordance with this Regulation, which shall be announced within the scope of expropriation. A compensation decision shall be fair, and include the relevant matters in a compensation agreement as prescribed in paragraph 1 of Article 25 of this Regulation. An owner who disagrees on a compensation decision may apply for administrative reconsideration or file an administrative lawsuit according to law.”

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Nail House “Nail house” or “ding zi hu” ( 釘子戶 )

Meaning: a Chinese word that means a household or person who refuses to vacate their home to make way for real estate. development. It was translated as “nail house” because "they stick out like nails in an otherwise modernized environment.”

Local Regulations usually provide three solutions 1) provide housing on the same spot; 2) provide housing in another spot; 3) provide a sum of money.

- The developer usually opts for the last one, and the home owner often prefers the first one.

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Examples of Nail House

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Examples of Nail House

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Major Demolition Fatalities On August 22, 2003, a middle-aged man in Nanjing set

himself on fire at the local demolition office. Covered in burns on 97 percent his body, he later died from his injuries the same evening.

In June 2008, a woman named Pan Rong stood on the roof of her home in Minhang District of Shanghai, threatening suicide. She also attempted to use home-made petrol bombs on demolition teams.

In April 2008, a homeowner in Quanzhou City of Fujian Province set himself on fire and died of his burns at home.

In February 2009, a homeowner set herself on fire with gasoline in Chifeng City of Inner Mongolia, when a local court ordered the demolition of her house.

On November 13, 2009, Tang Fuzhen unsuccessfully resisted a demolition in Chengdu City of Sichuan Province after setting herself on fire. She died in the local hospital ten days later.

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Controversies Surrounding Forced Demolition

Videos: “China's New Faces Sorrow Behind Redevelopment” (Students may watch after class) Part 1: http://www.youtube.com/watch?

v=gpVnUzMU5aU Part 2: http://www.youtube.com/watch?v=qj7MZSowgds Part 3: http://www.youtube.com/watch?

v=kBkNqvQkLNg Part 4: http://www.youtube.com/watch?v=UgEgQ9UtI_o

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Contract Law: before 1999

Laws governing contracts before 1999 unification Economic Contract Law (1981)

Mainly applied to contracts signed by state enterprises, but also applicable to entities registered with the government.

Contracts to implement state economic plans. Contracts must be certified by the State Administration of

Industry and Commerce, or SAIC ( 工商局 ).

Foreign Economic Contract Law (1985) Applied to foreign nationals, entities, or organizations.

Technology Contract Law (1987) Applied to technology transfer contacts

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Contract Law (1999)

Also called Uniform Contract Law (UCL). Why Unified?

To adapt the contract law to the needs of market economy. To align with international standards, particularly the UN

Convention on International Sale of Goods (CISG, or the “Vienna Convention”).

Providing a bunch of new types of contracts, corresponding to the development of market economy, e.g. donation contracts, loans, financial lease, bailment, agency, etc.

To avoid repetitions and eliminate inconsistencies among the three contract laws. More user-friendly.

To converge domestic and foreign contractual regimes to the same legal framework.

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UCL: Freedom of Contract Art 4: “Parties enjoy the legal right to voluntarily

enter into contracts, and no work unit or individual may illegally intervene therein.” Freedom as to contracting parties: “natural persons,

legal persons or other organizations with equal standing.”

Freedom as to forms of contract Freedom as to types of damages (Art 107: parties to

choose from the following: continuing to perform contractual obligations, taking remedial measures, or compensating for losses.)

NB: State “mandatory plans or purchase plans” need to be

observed: e.g. “Five Year plan” Public interests or state interests must not be infringed

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UCL: Formation of Contract (Chap. 2)

Writing requirements removed Oral contracts and electronic form now allowed.

“Offer-acceptance” approach adopted No requirement for “consideration” as compared with

formation of contacts in common law jurisdictions. Pre-contractual liabilities established ( 缔约过失责任 )

Damages for fraudulent and bad faith negotiation. Rules about “confidentiality” and “no-shop” clauses in Letter

of Intent.

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UCL: Effects of Contract (Chap. 3)

Void contracts ( 无效合同 ), if: Harm public interests Violate mandatory provisions of laws or administrative

regulations For illegal purposes

Voidable contracts ( 可撤销合同 ), if: Duress Serious mistake Fraudulence Undue influence

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UCL: Performance

Situations when liabilities can be exempted (or Defenses to non-performance): Art 94 Force majeure (objective circumstances that cannot be foreseen,

avoided and overcome): e.g., bad weather, war; obligation to notice the other party (Arts 117, 118 )

Express repudiation by the other party; The other party has delayed its performance and the delay exceeds

the “grace period”; The delay in performance has led to frustration of the purpose of the

contract. No assurance for performance has been provided after demand.

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UCL: Remedies

Damages available: Art 113 Liquidated damages, not exceeding anticipatory damages

(anticipated or ought to be anticipated by the responsible party at time of forming the contract)

Not including punitive damages, nor consequential losses Specific performance: Art 110

Used very often before, but more limited now. It can be denied if:

It is impossible as a matter of fact or law; The subject matter of the contract can be obtained on the

market; The subject matter is “unfit” for specific performance; The cost would be “excessive”; or It has not been requested within a reasonable time.

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UCL: Dispute Resolutions

Three forms: Art 128 (1) Mediation or conciliation; (2) Arbitration, on the basis of a valid arbitration agreement;

parties to foreign-related contracts may choose foreign arbitrations;

Litigation as the back-up method for dispute resolution, should there be no dispute settlement arrangement in contract.

Limitation to claim contractual rights: 2 years from the date when the party knew or ought to have

known that his/her rights were violated.

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UCL: Contracts on Sale of Goods (chap. 9)

Seller’s basic obligations The seller shall perform the obligations of delivering to the buyer the subject

matter or handing over the documents for the buyer to take possession of the subject matter, as well as of transferring the ownership of subject matter to the buyer. (Art 135)

The seller shall deliver to the buyer the relevant documents and materials in accordance with the agreement or transaction practices. (Art 136)

Obligations concerning the nature, quality, quantity, ownership, packing of the subject matter (Arts 148, 149, 150, 151, 153, 154)

Warranty clause (Arts 148, 154)

Buyer’s basic obligations The buyer should pay the price in due course and in due manner. (Art 159) The buyer should check the subject matter and make due notice to buyer if

unsatisfied with quantity or quality of subject matter. (Arts 157, 158)