合同法解釋(一)-中英文

1、最高人民法院關(guān)于適用中華人民共和國(guó)合同法 若干問(wèn)題的解釋(一)The Supreme People' s Court' s Interpretations of Certain Issues Concerning the Application of The Contract Law of the People ' s Republic of China(I)I. Scope of Application of the LawII. Time Limit for ActionIII. Validity of ContractsIV. SubrogationV. Canc

2、ellation RightVI. Cancellation RightVII. Interested Third Person in Case of Assignment of ContractsVIII. Merger of ClaimsThe Supreme People' s Court' s Interpretations of Certain Issues Concerning the Application ofThe Contract Law of the People ' s Republic of China(Part One)Translated

3、by John Jiang & Henry LiuThe Supreme People' s Court' s Interpretations of Certain Issues Concerning the Application of The Contract Law of the People ' s Republic of ChinaJudicial Interpretations (1999) No. 19Adopted at the 1090th Session of the Adjudication Committee of the Supreme

4、 People ' s Court on December 1, 1999The Supreme People' s Court' s Interpretations of Certain Issues Concerning the Application of The Contract Law of the People 's Republic of China (Part One), which shall become operative as from December 29, 1999, were adopted at the 1090th Sessi

5、on of the Adjudication Committee of the Supreme People' s Court on December 1, 1999 and are hereby promulgated.Pursuant to The Contract Law of the People' s Republic of China (hereinafter the “Contract Law” ), and with a view to facilitating the proper adjudication of contractual disputes, w

6、e hereby promulgate the following interpretations of certain issues concerning the application of the Contract Law by People ' s Courts:I. Scope of Application of the LawClause 1 Where a suit is brought to a People' s Court in respect of a dispute arising out of a contract formed after the o

7、perative date of the Contract Law, the provisions of the Contract Law shall apply; where a suit is brought to a People' s Court in respect of a dispute concerning a contract formed before the operative date of the Contract Law, except otherwise provided herein, the provisions of the law in effec

8、t at the time shall apply, provided that if the law in effect at the time did not provide for such matter, the relevant provision of the Contract Law may apply.Clause 2 Where a contract was formed before the operative date of the Contract Law, but the prescribed time limit for performance extends be

9、yond, or commences after, the operative date of the Contract Law, if a dispute arises out of its performance, the relevant provisions of Chapter Four of the Contract Law shall apply.Clause 3 In determining the validity of a contract formed before the operative date of the Contract Law, if applicatio

10、n of the law in effect at the time leads to its invalidation, but application of the Contract Law leads to affirmation of its validity, the People ' s Court shall apply the Contract Law.Clause 4 After the Contract Law became operative, a People' s Court may only invalidate a contract in acco

11、rdance with laws adopted by the National People' s Congress or its Standing Committee, or administrative regulations adopted by the State Council, and may not invalidate a contract in accordance with any local statutes or administrative rules.Clause 5 Where a People' s Court re-adjudicates a

12、 case on which a final judgment has been rendered, the Contract Law does not apply.II. Time Limit for ActionClause 6 In a dispute arising out of a technology contract, where infringement of the right of a party occurred before the operative date of the Contract Law, if there was a lapse of more than

13、 one year between the date on which the party knew or should have known that its right was infringed and the operative date of the Contract Law, the People ' s Court will no longer enforce such right; where the lapse was less than one year, the time limit during which the party may bring a suit

14、shall be two years.Clause 7 In a dispute arising out of a technology import/export contract, where infringement of the right of a party occurred before the operative date of the Contract Law, if there was a lapse of more than two years between the date on which the party knew or should have known th

15、at its right was infringed and the operative date of the Contract Law, the People' s Court will no longer enforce such right; where the lapse was less than two years, the time limit during which the party may bring a suit shall be four years.Clause 8 The time period of “one year” set out in Arti

16、cle 55, and the time period of “five years ” set out in Article 75 and Paragraph 2 of Article 104 of the Contract Law are fixed, and are not subject to the rules governing the suspension, termination or extension of time limit for action.III. Validity of ContractsClause 9 Where as set forth in Parag

17、raph 2 of Article 44 of the Contract Law, the relevant law or administration regulation provides that the effectiveness of a certain contract is subject to completion of the relevant approval procedure, or the relevant approval and registration procedures, if before completion of court debate by the

18、 parties in the trial of first instance, the parties still fail to carry out the relevant approval procedure, or approval and registration procedures, as the case may be, the People' s Court shall rule that the contract has not yet taken effect; if the relevant law or administration regulation r

19、equires that a certain contract be registered without subjecting its effectiveness to such registration, then failure to effect registration shall not impair the effectiveness of the contract, provided that such failure constitutes an impediment to the conveyance of title to, or such other real righ

20、t in, the subject matter of the contract.In the case of amendment, assignment or termination of a contract as set forth in Paragraph 2 of Article 77, Article 87, and Paragraph 2 of Article 96 of the Contract Law, the provisions of the previous Paragraph apply.Clause 10 Where the parties entered into

21、 a contract the subject matter of which was outside their scope of business, the People ' s Court shall not invalidate the contract on such ground, except where conclusion of the contract was in violation of state restriction concerning, or licensing requirement for, a particular business sector

22、, or in violation of any law or administrative regulation prohibiting the parties from participation in a particular business sector.IV. SubrogationClause 11 Where an obligee is to bring a suit of subrogation pursuant to Article 73 of the Contract Law, the following conditions shall be met:(1) The o

23、bligee ' s creditor ' s right against the obligor is lawful;(2) The obligor 's delay in exercising the creditor 's right due to it has caused harm to the obligee;(3) The creditor ' s right of the obligor is due;(4) The creditor ' s right of the obligor is not exclusively pers

24、onal to it.Clause 12 As referred to in Paragraph 1 of Article 73, a creditor 's right exclusively personal to the obligor means a claim for alimony, child support, parental support or succession, or, a claim for wage, retirement pension, old age pension, death benefits, relocation allowance or l

25、ife insurance, or, a personal injury claim.Clause 13 The clause “ Where the obligor delayed in exercising its creditor 's right against a third person that was due, thereby harming the obligee ” in Article 73 of the Contract Law refers to the following circumstance: The obligor fails to render p

26、erformance which is due to the obligee, and further, it has failed to enforce a creditor 's right which is due to it and which involves the payment of money against an obligor either through a suit in court or through arbitration, thereby frustrating the obligee ' s realization of the credit

27、or ' s right due to it.Where the secondary obligor (i.e. the obligor of the original obligor) denies that the obligor has delayed in exercising its creditor 's right due to it, the secondary obligor bears the burden of proof.Clause 14 Where an obligee brings a suit of subrogation pursuant to

28、 Article 73 of the Contract Law, jurisdiction shall vest in the People ' s Court in the place where the defendant is domiciled.Clause 15 Where after bringing a suit against an obligor to a People ' s Court, an obligee brings a suit of subrogation against a secondary obligor to the same court

29、, if such suit complies with the provisions of Article 13 hereof as well as the conditions for bringing a suit set forth in Article 108 of the Civil Procedural Law of the People ' s Republic of China, the court shall accept such suit; where such suit does not comply with Article 13 hereof, the c

30、ourt shall direct the obligee to bring a separate suit to the People' s Court in the place where the secondary obligor is domiciled. Before judgment on the suit brought by the obligee against the obligor takes legal effect, the People' s Court adjudicating the suit of subrogation against the

31、 secondary obligor shall stay such suit in accordance with Item (5) of Article 136 of the Civil Procedural Law of the People' s Republic of China.Clause 16 Where in a suit of subrogation brought to a People ' s Court, an obligee names only the secondary obligor as the defendant without also

32、naming the original obligor as an interested third person, the People' s Court may add the original obligor as an interested third person.Where in suits of subrogation brought separately by two or more obligees, the same secondary obligor is named as the defendant, the People' s Court may co

33、mbine the suits for adjudication.Clause 17 In a suit of subrogation, if the obligee petitions the People' s Court for preservativemeasure against the assets of the secondary obligor, it shall provide appropriate financial assurance.Clause 18 In a suit of subrogation, the secondary obligor may, i

34、n respect of the obligee, avail itself of any defense it has against the original obligor.In a suit of subrogation, where the obligor raises a defense against the obligee ' s claim, if the People' s Court affirms the defense, it shall dismiss the suit brought by the obligee.Clause 19 In a su

35、it of subrogation, if the obligee prevails, the court fee shall be borne by the secondary obligor, and shall be paid in priority out of the proceeds from the enforced creditor' sright.Clause 20 Where an obligee brings a suit of subrogation against a secondary obligor, and the People' s Court

36、 affirms the subrogation, the secondary obligor shall perform the payment obligation, whereupon the respective obligee-obligor relationships between the obligee and the obligor, and between the obligor and the secondary obligor, are discharged accordingly.Clause 21 In a suit of subrogation, where th

37、e amount in subrogation claimed by the obligee exceeds the amount owed by the obligor or the amount owed to the obligor by the secondary obligor, the People ' s Court shall not enforce the claim to the extent the claimed amount exceeds the actual amount.Clause 22 In a suit of subrogation, if the

38、 obligor also brings a claim against the secondary obligor for the difference between the amount owed to it and the amount in subrogation claimed by the obligee, the People' s Court shall direct the obligor to bring a separate suit to the People ' s Court with the proper jurisdiction.Where s

39、uch suit brought separately by the obligor meets the legally prescribed conditions, the People's Court shall accept such suit; the People 's Court accepting the suit brought by the obligor shall stay such suit in accordance with the law pending the legal effectiveness of the judgment on the

40、suit of subrogation.V. Cancellation RightClause 23 Where an obligee brings a suit to enforce its cancellation right pursuant to Article 74 of the Contract Law, jurisdiction shall vest in the People ' s Court in the place where the defendant is domiciled.Clause 24 If in a suit to enforce its canc

41、ellation right pursuant to Article 74 of the Contract Law, the obligee only names the obligor as the defendant without also naming the beneficiary or the assignee as an interested third person, the People's Court may add such beneficiary or assignee as an interested third person.Clause 25 Where

42、an obligee brings a suit to enforce its cancellation right pursuant to Article 74 of the Contract Law and petitions the People 's Court for cancellation of the obligor 's act of waiving its creditor ' s right or transferring its property, the People ' s Court shall adjudicate the cas

43、e to the extent of the amount claimed by the obligee, and if the obligor ' s act is canceled in accordance with the law, such act is invalid ab initio.Where suits on the same subject matter are filed separately by two or more obligees to enforce their respective cancellation rights, and the same

44、 obligor is named as the defendant, the People ' s Court may combine the suits for adjudication.Clause 26 The necessary expenses incurred by the obligee in enforcing its cancellation right, such as attorney ' s fee and travel expenses, shall be borne by the obligor; where the interested thir

45、d person was also at fault, it shall share such expenses as appropriate.VI. Interested Third Person in Case of Assignment of ContractsClause 27 If subsequent to the obligee ' s assignment of its contractual right, a suit is brought to a People' s Court in respect of a dispute between the obl

46、igor and the assignee which arose from the performance of the contract, and the obligor raises a defense against the contractual right of the obligee, it may name the obligee as an interested third person.Clause 28 If with the consent of the obligee, the obligor has delegated its contractual obligat

47、ion, and subsequently a suit is brought to a People' s Court in respect of a dispute between the obligee and the delegatee which arose from the performance of the contract, and the delegatee, in defense against the obligee, avails itself of the obligor ' s right against the obligee, it may n

48、ame the obligor as an interested third person.Clause 29 If with the consent of the other party, a party concurrently assigned its contractual rights and delegated its contractual obligations to an assignee, and subsequently a suit isbrought to aPeople' s Court in respect of a dispute between the

49、 other party and the assignee which arose from the performance of the contract, and the other party raises a defense in respect of the rights and obligations under the contract, it may name the obligor as an interested third person.VII. Merger of ClaimsClause 30 Where at the time the obligee brought

50、 a suit to a People ' s Court, it made an election of claim in accordance with Article 122 of the Contract Law, and subsequently it changes its election, if the change is made before the commencement of hearing in the trial of first instance, the People' s Court shall allow such change. In t

51、he event the other party objects to the jurisdiction of the court and such objection is sustained, the People' s Court shall dismiss such suit.（一九九九年十二月一日最高人民法院審判委員會(huì)第一千零九十次會(huì)議通過(guò)）已于 1999年 12月 1日由最高人民法院審判委員會(huì)第 1090次會(huì)議通過(guò)，現(xiàn)予公布， 自 1999 年 12 月 29 日起施行。一九九九年十二月十九日為了正確審理合同糾紛案件，根據(jù)中華人民共和國(guó)合同法 （以下簡(jiǎn)稱合同法 ）的規(guī)定，對(duì)

52、人民法院適用合同法的有關(guān)問(wèn)題作出如下解釋：一、法律適用范圍 第一條合同法實(shí)施以后成立的合同發(fā)生糾紛起訴到人民法院的，適用合同法的規(guī) 定；合同法實(shí)施以前成立的合同發(fā)生糾紛起訴到人民法院的，除本解釋另有規(guī)定的以 外，適用當(dāng)時(shí)的法律規(guī)定，當(dāng)時(shí)沒有法律規(guī)定的，可以適用合同法的有關(guān)規(guī)定。第二條合同成立于合同法實(shí)施之前，但合同約定的履行期限跨越合同法實(shí)施之日 或者履行期限在合同法實(shí)施之后，因履行合同發(fā)生的糾紛，適用合同法第四章的有關(guān) 規(guī)定。第三條人民法院確認(rèn)合同效力時(shí)，對(duì)合同法實(shí)施以前成立的合同，適用當(dāng)時(shí)的法 律合同無(wú)效而適用合同法合同有效的，則適用合同法。第四條合同法實(shí)施以后，人民法院確認(rèn)合同無(wú)效，應(yīng)當(dāng)

53、以全國(guó)人大及其常委會(huì)制 定的法律和國(guó)務(wù)院制定的行政法規(guī)為依據(jù)，不得以地方性法規(guī)、行政規(guī)章為依據(jù)。第五條人民法院對(duì)合同法實(shí)施以前已經(jīng)作出終審裁決的案件進(jìn)行再審，不適用合 同法。二、訴訟時(shí)效 第六條技術(shù)合同爭(zhēng)議當(dāng)事人的權(quán)利受到侵害的事實(shí)發(fā)生在合同法實(shí)施之前，自當(dāng) 事人知道或者應(yīng)當(dāng)知道其權(quán)利受到侵害之日起至合同法實(shí)施之日超過(guò)一年的，人民法 院不予保護(hù)；尚未超過(guò)一年的，其提起訴訟的時(shí)效期間為兩年。第七條技術(shù)進(jìn)出口合同爭(zhēng)議當(dāng)事人的權(quán)利受到侵害的事實(shí)發(fā)生在合同法實(shí)施之前 ，自當(dāng)事人知道或者應(yīng)當(dāng)知道其權(quán)利受到侵害之日起至合同法施行之日超過(guò)兩年的， 人民法院不予保護(hù)；尚未超過(guò)兩年的，其提起訴訟的時(shí)效期間為四年

54、。第八條合同法第五十五條規(guī)定的“一年” 、第七十五條和第一百零四條第二款規(guī) 定的“五年”為不變期間，不適用訴訟時(shí)效中止、中斷或者延長(zhǎng)的規(guī)定。三、合同效力 第九條依照合同法第四十四條第二款的規(guī)定，法律、行政法規(guī)規(guī)定合同應(yīng)當(dāng)辦理 批準(zhǔn)手續(xù)，或者辦理批準(zhǔn)、登記等手續(xù)才生效，在一審法庭辯論終結(jié)前當(dāng)事人仍未辦 理批準(zhǔn)手續(xù)的，或者仍未辦理批準(zhǔn)、登記等手續(xù)的，人民法院應(yīng)當(dāng)認(rèn)定該合同未生效 ;法律、行政法規(guī)規(guī)定合同應(yīng)當(dāng)辦理登記手續(xù)，但未規(guī)定登記后生效的，當(dāng)事人未辦 理登記手續(xù)不影響合同的效力，合同標(biāo)的物所有權(quán)及其他物權(quán)不能轉(zhuǎn)移。合同法第七十七條第二款、第八十七條、第九十六條第二款所列合同變更、轉(zhuǎn)讓 、解除等情形，依照前款規(guī)定處理。第十條當(dāng)事人超越經(jīng)營(yíng)范圍訂立合同，人民法院不因此認(rèn)定合同無(wú)效。但違反國(guó) 家限制經(jīng)營(yíng)、特許經(jīng)營(yíng)以及法律、行政法規(guī)禁止經(jīng)營(yíng)規(guī)定的除外。四、代位權(quán)第十一條債權(quán)人依照合同法第七十三條的規(guī)定提起代位權(quán)訴訟，應(yīng)當(dāng)符合下列條 件：（