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中华人民共和国民法通则(一)

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中华人民共和国民法通则
GENERAL PRINCIPLES OF THE CIVIL LAW OF THE PEOPLE'S REPUBLIC OF CHINA

(Adopted at the Fourth Session of the Sixth National People's Congress, promulgated by Order No. 37 of the President of the People's Republic of China on April 12, 1986, and effective as of January 1, 1987)
颁布日期:19860412  实施日期:19870101  颁布单位:全国人大

  Contents

  Chapter I Basic Principles

  Chapter II Citizen (Natural Person)

  Section 1 Capacity for Civil Rights and Capacity for Civil Conduct

  Section 2 Guardianship

  Section 3 Declarations of Missing Persons and Death

  Section 4 Individual Businesses and Lease holding Farm Households

  Section 5 Individual Partnership

  Chapter III Legal Persons

  Section 1 General Stipulations

  Section 2 Enterprise as Legal Person

  Section 3 Official Organ, Institution and Social Organization as Legal Persons

  Section 4 Economic Association

  Chapter IV Civil Juristic Acts and Agency

  Section 1 Civil Juristic Acts

  Section 2 Agency

  Chapter V Civil Rights

  Section 1 Property Ownership and Related Property Rights

  Section 2 Creditors' Rights

  Section 3 Intellectual Property Rights

  Section 4 Personal Rights

  Chapter VI Civil Liability

  Section 1 General Stipulations

  Section 2 Civil Liability for Breach of Contract

  Section 3 Civil Liability for Infringement of Rights

  Section 4 Methods of Bearing Civil Liability

  Chapter VII Limitation of Action

  Chapter VIII Application of Law in Civil Relations with Foreigners

  Chapter IX Supplementary Provisions

  Chapter I Basic Principles

  Article 1 This Law is formulated in accordance with the Constitution and the actual situation in our country, drawing upon our practical experience in civil activities, for the purpose of protecting the lawful civil rights and interests of citizens and legal persons and correctly adjusting civil relations, so as to meet the needs of the developing socialist modernization.

  Article 2 The Civil Law of the People's Republic of China shall adjust property relationships and personal relationships between civil subjects with equal status, that is, between citizens, between legal persons and between citizens and legal persons.

  Article 3 Parties to a civil activity shall have equal status.

  Article 4 In civil activities, the principles of voluntariness, fairness, making compensation for equal value, honesty and credibility shall be observed.

  Article 5 The lawful civil rights and interests of citizens and legal persons shall be protected by law; no organization or individual may infringe upon them.

  Article 6 Civil activities must be in compliance with the law; where there are no relevant provisions in the law, they shall be in compliance with state policies.

  Article 7 Civil activities shall have respect for social ethics and shall not harm the public interest, undermine state economic plans or disrupt social economic order.

  Article 8 The law of the People's Republic of China shall apply to civil activities within the People's Republic of China, except as otherwise stipulated by law.

  The stipulations of this Law as regards citizens shall apply to foreigners and stateless persons within the People's Republic of China, except as otherwise stipulated by law.

  Chapter II Citizen (Natural Person)

  Section 1 Capacity for Civil Rights and Capacity for Civil Conduct.

  Article 9 A citizen shall have the capacity for civil rights from birth to death and shall enjoy civil rights and assume civil obligations in accordance with the law.

  Article 10 All citizens are equal as regards their capacity for civil rights.

  Article 11 A citizen aged 18 or over shall be an adult. He shall have full capacity for civil conduct, may independently engage in civil activities and shall be called a person with full capacity for civil conduct.

  A citizen who has reached the age of 16 but not the age of 18 and whose main source of income is his own labour shall be regarded as a person with full capacity for civil conduct.

  Article 12 A minor aged 10 or over shall be a person with limited capacity for civil conduct and may engage in civil activities appropriate to his age and intellect; in other civil activities, he shall be represented by his agentad litem or participate with the consent of his agent ad litem.

  A minor under the age of 10 shall be a person having no capacity for civil conduct and shall be represented in civil activities by his agent ad litem.

  Article 13 A mentally ill person who is unable to account for his own conduct shall be a person having no capacity for civil conduct and shall be represented in civil activities by his agent ad litem.

  A mentally ill person who is unable to fully account for his own conduct shall be a person with limited capacity for civil conduct and may engage in civil activities appropriate to his mental health; in other civil activities, he shall be represented by his agent ad litem or participate with the consent of his agent ad litem.

  Article 14 The guardian of a person without or with limited capacity for civil conduct shall be his agent all item.

  Article 15 The domicile of a citizen shall be the place where his residence is registered; if his habitual residence is not the same as his domicile, his habitual residence shall be regarded as his domicile.

  Section 2 Guardianship

  Article 16 The parents of a minor shall be his guardians.

  If the parents of a minor are dead or lack the competence to be his guardian, a person from the following categories who has the competence to be a guardian shall act as his guardian:

  (1) paternal or maternal grandparent;

  (2) elder brother or sister; or

  (3) any other closely connected relative or friend willing to bear the responsibility of guardianship and having approval from the units of the minor's parents or from the neighbourhood or village committee in the place of the minor's residence. In case of a dispute over guardianship, the units of the minor's parents or the neighbourhood or village committee in the place of his residence shall appoint a guardian from among the minor's near relatives. If disagreement over the appointment leads to a lawsuit, the people's court shall make a ruling.

  If none of the persons listed in the first two paragraphs of this article is available to be the guardian, the units of the minor's parents, the neighbourhood or village committee in the place of the minor's residence or the civil affairs department shall act as his guardian.

  Article 17 A person from the following categories shall act as guardian for a mentally ill person without or with limited capacity for civil conduct:

  (1) spouse;

  (2) parent;

  (3) adult child;

  (4) any other near relative;

  (5) any other closely connected relative or friend willing to bear the responsibility of guardianship and having approval from the unit to which the mentally ill person belongs or from the neighbourhood or village committee in the place of his residence. In case of a dispute over guardianship, the unit to which the mentally ill person belongs or the neighbourhood or village committee in the place of his residence shall appoint a guardian from among his near relatives. If disagreement over the appointment leads to a lawsuit, the people's court shall make a ruling. If none of the persons listed in the first paragraph of this article is available to be the guardian, the unit to which the mentally ill person belongs, the neighbourhood or village committee in the place of his residence or the civil affairs department shall act as his guardian.

  Article 18 A guardian shall fulfil his duty of guardianship and protect the person, property and other lawful rights and interests of his ward. A guardian shall not handle the property of his ward unless it is in the ward's interests.

  A guardian's rights to fulfil his guardianship in accordance with the law shall be protected by law.

  If a guardian does not fulfil his duties as guardian or infringes upon the lawful rights and interests of his ward, he shall be held responsible; if a guardian causes any property loss for his ward, he shall compensate for such loss. The people's court may disqualify a guardian based on the application of a concerned party or unit.

  Article 19 A person who shares interests with a mental patient may apply to a people's court for a declaration that the mental patient is a person without or with limited capacity for civil conduct.

  With the recovery of the health of a person who has been declared by a people's court to be without or with limited capacity for civil conduct, and upon his own application or that of an interested person, the people's court may declare him to be a person with limited or full capacity for civil conduct.

  Section 3 Declarations of Missing Persons and Death

  Article 20 If a citizen's whereabouts have been unknown for two years, an interested person may apply to a people's court for a declaration of the citizen s missing.

  If a person's whereabouts become unknown during a war, the calculation of the time period in which his whereabouts are unknown shall begin on the final day of the war.

  Article 21 A missing person's property shall be placed in the custody of his spouse, parents, adult children or other closely connected relatives or friends.

  In case of a dispute over custody, if the persons stipulated above are unavailable or are incapable of taking such custody, the property shall be placed in the custody of a person appointed by the people's court. Any taxes, debts and other unpaid expenses owed by a missing person shall defrayed by the custodian out of the missing person's property.

  Article 22 In the event that a person who has been declared missing reappears or his whereabouts are ascertained, the people's court shall, upon his own application or that of an interested person, revoke the declaration of his missing-person status.

  Article 23 Under either of the following circumstances, an interested person may apply to the people's court for a declaration of a citizen's death:

  (1) if the citizen's whereabouts have been unknown for four years or

  (2) if the citizen's whereabouts have been unknown for two years after the date of an accident in which he was involved.

  If a person's whereabouts become unknown during a war, the calculation of the time period in which his whereabouts are unknown shall begin on the final day of the war.

  Article 24 In the event that a person who has been declared dead reappears or it is ascertained that he is alive, the people's court shall, upon his own application or that of an interested person, revoke the declaration of his death.

  Any civil juristic acts performed by a person with capacity for civil conduct during the period in which he has been declared dead shall be valid.

  Article 25 A person shall have the right to request the return of his property, if the declaration of his death has been revoked. Any citizen or organization that has obtained such property in accordance with the Law of Succession shall return the original items or make appropriate compensation if the original items no longer exist.

  Section 4 Individual Businesses and Lease holding Farm Households

  Article 26 “Individual businesses” refers to business run by individual citizens who have been lawfully registered and approved to engage in industrial or commercial operation within the sphere permitted by law. An individual business may adopt a shop name.

  Article 27 “Lease holding farm households” refers to members of a rural collective economic organization who engage in commodity production under a contract and within the spheres permitted by law.

  Article 28 The legitimate rights and interests of individual businesses and lease holding farm households shall be protected by law.

  Article 29 The debts of an individual business or a lease holding farm household shall be secured with the individual's property if the business is operated by an individual and with the family's property if the business is operated by a family. Section 5 Individual Partnership

  Article 30 “Individual partnership” refers to two or more citizens associated in a business and working together, with each providing funds, material objects, techniques and so on according to an agreement.

  Article 31 Partners shall make a written agreement covering the funds each is to provide, the distribution of profits, the responsibility for debts, the entering into and withdrawal from partnership, the ending of partnership and other such matters.

  Article 32 The property provided by the partners shall be under their unified management and use. The property accumulated in a partnership operation shall belong to all the partners.

  Article 33 An individual partnership may adopt a shop name; it shall be approved and registered in accordance with the law and conduct business operations within the range as approved and registered.

  Article 34 The operational activities of an individual partnership shall be decided jointly by the partners, who each shall have the right to carry out and supervise those activities. The partners may elect a responsible person. All partners shall bear civil liability for the operational activities of the responsible person and other personnel.

  Article 35 A partnership's debts shall be secured with the partners' property in proportion to their respective contributions to the investment or according to the agreement made. Partners shall undertake joint liability for their partnership's debts, except as otherwise stipulated by law. Any partner who overpays his share of the partnership's debts shall have the right to claim compensation from the other partners.

  Chapter III Legal Persons

  Section 1 General Stipulations

  Article 36 A legal person shall be an organization that has capacity for civil rights and capacity for civil conduct and independently enjoys civil rights and assumes civil obligations in accordance with the law.

  A legal person's capacity for civil rights and capacity for civil conduct shall begin when the legal person is established and shall end when the legal person terminates.

  Article 37 A legal person shall have the following qualifications:

  (1) establishment in accordance with the law;

  (2) possession of the necessary property or funds;

  (3) possession of its own name, organization and premises; and

  (4) ability to independently bear civil liability.

  Article 38 In accordance with the law or the articles of association of the legal person, the responsible person who acts on behalf of the legal person in exercising its functions and powers shall be its legal representative.

  Article 39 A legal person's domicile shall be the place where its main administrative office is located.

  Article 40 When a legal person terminates, it shall go into liquidation in accordance with the law and discontinue all other activities.

  Section 2 Enterprise as Legal Person

  Article 41 An enterprise owned by the whole people or under collective ownership shall be qualified as a legal person when it has sufficient funds as stipulated by the state; has articles of association, an organization and premises; has the ability to independently bear civil liability; and has been approved and registered by the competent authority. A Chinese-foreign equity joint venture, Chinese-foreign contractual joint venture or foreign-capital enterprise established within the People's Republic of China shall be qualified as a legal person in China if it has the qualifications of a legal person and has been approved and registered by the administrative agency for industry and commerce in according with the law.

  Article 42 An enterprise as legal person shall conduct operations within the range approved and registered.

  Article 43 An enterprise as legal person shall bear civil liability for the operational activities of its legal representatives and other personnel.

  Article 44 If an enterprise as legal person is divided or merged or undergoes any other important change, it shall register the change with the registration authority and publicly announce it.

  When an enterprise as legal person is divided or merged, its rights and obligations shall be enjoyed and assumed by the new legal person that results from the change.

  Article 45 An enterprise as legal person shall terminate for any of the following reasons:

  (1) if it is dissolved by law;

  (2) if it is disbanded;

  (3) if it is declared bankrupt in accordance with the law; or

  (4) for other reasons.

  Article 46 When an enterprise as legal person terminates, it shall cancel its registration with the registration authority and publicly announce the termination.

  Article 47 When an enterprise as legal person is disbanded, it shall establish a liquidation organization and go into liquidation. When an enterprise as legal person is dissolved or is declared bankrupt, the competent authority or a people's court shall organize the organs and personnel concerned to establish a liquidation organization to liquidate the enterprise.

  Article 48 An enterprise owned by the whole people, as legal person, shall bear civil liability with the property that the state authorizes it to manage. An enterprise under collective ownership, as legal person, shall bear civil liability with the property it owns. A Chinese-foreign equity joint venture, Chinese-foreign contractual joint venture or foreign-capital enterprise as legal person shall bear civil liability with the property it owns, except as stipulated otherwise by law.

  Article 49 Under any of the following circumstances, an enterprise as legal person shall bear liability, its legal representative may additionally be given administrative sanctions and fined and, if the offence constitutes a crime, criminal responsibility shall be investigated in accordance with the law:

  (1) conducting illegal operations beyond the range approved and registered by the registration authority;

  (2) concealing facts from the registration and tax authorities and practising fraud;

  (3) secretly withdrawing funds or hiding property to evade repayment of debts;

  (4) disposing of property without authorization after the enterprise is dissolved, disbanded or declared bankrupt;

  (5) failing to apply for registration and make a public announcement promptly when the enterprise undergoes a change or terminates, thus causing interested persons to suffer heavy losses;

  (6) engaging in other activities prohibited by law, damaging the interests of the state or the public interest.

  Section 3 Official Organ, Institution and Social Organization as Legal Person

  Article 50 An independently funded official organ shall be qualified as a legal person on the day it is established.

  If according to law an institution or social organization having the qualifications of a legal person needs not go through the procedures for registering as a legal person, it shall be qualified as a legal person on the day it is established; if according to law it does need to go through the registration procedures, it shall be qualified as a legal person after being approved and registered.

  Section 4 Economic Association

  Article 51 If a new economic entity is formed by enterprises or an enterprise and an institution that engage in economic association and it independently bears civil liability and has the qualifications of a legal person, the new entity shall be qualified as a legal person after being approved and registered by the competent authority.

  Article 52 If the enterprises or an enterprise and an institution that engage in economic association conduct joint operation but do not have the qualifications of a legal person, each party to the association shall, in proportion to its respective contribution to the investment or according to the agreement made, bear civil liability with the property each party owns or manages. If joint liability is specified by law or by agreement, the parties shall assume joint liability.

  Article 53 If the contract for economic association of enterprises or of an enterprise and an institution specifies that each party shall conduct operations independently, it shall stipulate the rights and obligations of each party, and each party shall bear civil liability separately.

  Chapter IV Civil Juristic Acts and Agency

  Section 1 Civil Juristic Acts

  Article 54 A civil juristic act shall be the lawful act of a citizen or legal person to establish, change or terminate civil rights and obligations.

  Article 55 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.

  Article 56 A civil juristic act may be in written, oral or other form. If the law stipulates that a particular form be adopted, such stipulation shall be observed.

  Article 57 A civil juristic act shall be legally binding once it is instituted. The actor shall not alter or rescind his act except in accordance with the law or with the other party's consent.

  Article 58 Civil acts in the following categories shall be null and void:

  (1) those performed by a person without capacity for civil conduct;

  (2) those that according to law may not be independently performed by a person with limited capacity for civil conduct;

  (3) those performed by a person against his true intentions as a result of cheating, coercion or exploitation of his unfavorable position by the other party;

  (4) those that performed through malicious collusion are detrimental to the interest of the state, a collective or a third party;

  (5) those that violate the law or the public interest;

  (6) economic contracts that violate the state's mandatory plans; and

  (7) those that performed under the guise of legitimate acts conceal illegitimate purposes. Civil acts that are null and void shall not be legally binding from the very beginning.

  Article 59 A party shall have the right to request a people's court or an reiteration agency to alter or rescind the following civil acts:

  (1) those performed by an actor who seriously misunderstood the contents of the acts;

  (2) those that are obviously unfair.

  Rescinded civil acts shall be null and void from the very beginning.

  Article 60 If part of a civil act is null and void, it shall not affect the validity of other parts.

  Article 61 After a civil act has been determined to be null and void or has been rescinded, the party who acquired property as a result of the act shall return it to the party who suffered a loss. The erring party shall compensate the other party for the losses it suffered as a result of the act; if both sides are in error, they shall each bear their proper share of the responsibility.

  If the two sides have conspired maliciously and performed a civil act that is detrimental to the interests of the state, a collective or a third party, the property that they thus obtained shall be recovered and turned over to the state or the collective, or returned to the third party.

  Article 62 A civil juristic act may have conditions attached to it. Conditional civil juristic acts shall take effect when the relevant conditions are met.

  Section 2 Agency

  Article 63 Citizens and legal persons may perform civil juristic acts through agents an agent shall perform civil juristic acts in the principal's name within the scope of the power of agency. The principal shall bear civil liability for the agent's acts of agency. Civil juristic acts that should be performed by the principal himself, pursuant to legal provisions or the agreement between the two parties, shall not be entrusted to an agent.

  Article 64 Agency shall include entrusted agency, statutory agency and appointed agency. An entrusted agent shall exercise the power of agency as entrusted by the principal; a statutory agent shall exercise the power of agency as prescribed by law; and an appointed agent shall exercise the power of agency as designated by a people's court or the appointing unit.

  Article 65 A civil juristic act may be entrusted to an agent in writing or orally. If legal provisions require the entrustment to be written, it shall be effected in writing. Where the entrustment of agency is in writing, the power of attorney shall clearly state the agent's name, the entrusted tasks and the scope and duration of the power of agency, and it shall be signed or sealed by the principal.

  If the power of attorney is not clear as to the authority conferred, the principal shall bear civil liability towards the third party, and the agent shall be held jointly liable.

  Article 66 The principal shall bear civil liability for an act performed by an actor with no power of agency, beyond the scope of his power of agency or after his power of agency has expired, only if he recognizes the act retroactively. If the act is not so recognized, the performer shall bear civil liability for it. If a principal is aware that a civil act is being executed in his name but fails to repudiate it, his consent shall be deemed to have been given.

  An agent shall bear civil liability if he fails to perform his duties and thus causes damage to the principal.

  If an agent and a third party in collusion harm the principal's interests, the agent and the third party shall be held jointly liable.

  If a third party is aware that an actor has no power of agency, is overstepping his power of agency, or his power of agency has expired and yet joins him in a civil act and thus brings damage to other people, the third party and the actor shall be held jointly liable.

  Article 67 If an agent is aware that the matters entrusted are illegal but still carries them out, or if a principal is aware that his agent's acts are illegal but fails to object to them, the principal and the agent shall be held jointly liable.

  Article 68 If in the principal's interests an entrusted agent needs to transfer the agency to another person, he shall first obtain the principal's consent.

  If the principal's consent is not obtained in advance, the matter shall be reported to him promptly after the transfer, and if the principal objects, the agent shall bear civil liability for the acts of the transferee; however, an entrusted agency transferred in emergency circumstances in order to safeguard the principal's interests shall be excepted.

  Article 69 An entrusted agency shall end under any of the following circumstances:

  (1) when the period of agency expires or when the tasks entrusted are completed;

  (2) when the principal rescinds the entrustment or the agent declines the entrustment;

  (3) when the agent dies;

  (4) when the principal loses his capacity for civil conduct; or

  (5) when the principal or the agent ceases to be a legal person.

  Article 70 A statutory or appointed agency shall end under any of the following circumstances:

  (1) when the principal gains or recovers capacity for civil conduct;

  (2) when the principal or the agent dies;

  (3) when the agent loses capacity for civil conduct;

  (4) when the people's court or the unit that appointed the agent rescinds the appointment; or

  (5) when the guardian relationship between the principal and the agent ends for other reasons.

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