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

Chinese Civil Law (中国民法)

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Article 13 Where a work is created jointly by two or more authors, the copyright in the work shall be enjoyed jointly by the co-authors. No co-authorship may be claimed by anyone who has not participated in the creation of the work. Where a work of joint authorship can be separated into parts and exploited separately, each co-author may be entitled to independent copyright in the part that he creates, provided that the exercise of such copyright does not prejudice the copyright in the joint work as a whole.

Article 14 A collection of preexisting works or passages therefrom, or of data or other material which does not constitute a work, if manifesting the originality of a work by reason of the selection or arrangement of its contents, is a compilation. The copyright in such compilation shall be enjoyed by the compiler, provided that the exercise of such copyright does not prejudice the copyright in the preexisting works. Article 15 The copyright in a cinematographic work or in a work created by a process analogous to cinematography shall be enjoyed by the producer of the work, while its scriptwriter, director, cameraman, lyricist, composer and other authors shall enjoy the right of authorship therein and shall be entitled to receive remuneration in accordance with the terms of the contracts concluded between them and the producer.

The authors of the script, the musical works and the other works which are included in a cinematographic work or in a work created by a process analogous to cinematography and which can be exploited separately shall be entitled to exercise their copyright independently. Article 16 A work created by a citizen in the fulfillment of tasks assigned to him by a legal entity or other organization is a work created in the course of employment.

Subject to the provisions of the second paragraph of this Article, the copyright in such work shall be enjoyed by the author; however, the legal entity or other organization shall have priority to exploit the work within the scope of its professional activities. Within two years after the completion of the work, the author may not, without the consent of the legal entity or other organization, authorize the exploitation of the work by a third party in the same manner as the legal entity or other organization exploits the work.

Chinese Contract Law

In any of the following cases, the author of a work created in the course of employment shall enjoy the right of authorship, while the legal entity or other organization shall enjoy the other rights included in the copyright and may reward the author:. Article 17 The ownership of the copyright in a commissioned work shall be agreed upon in a contract between the commissioning and the commissioned parties. In the absence of such a contract or of an explicit agreement in such a contract, the copyright in the work shall belong to the commissioned party.

Article 18 The transfer of ownership of the original copy of a work of the fine arts or other works shall not be deemed to include the transfer of the copyright in such work or works; however, the right to exhibit the original copy of the work of the fine arts shall be enjoyed by the owner of the original copy. Article 19 Where the copyright in a work belongs to a citizen, the rights as provided for in Subparagraph 5 through Subparagraph 17 of the first paragraph in Article 10 of this Law in respect of the work shall, after his death and during the term of protection provided for in this Law, be transferred in accordance with the provisions of the Law of Succession.

Where the copyright in a work belongs to a legal entity or other organization, the rights provided for in Subparagraph 5 through Subparagraph 17 of the first paragraph in Article 10 of this Law shall, after the change or the termination of the status of the legal entity or other organization and during the term of protection provided for in this Law, be enjoyed by the succeeding legal entity or other organization which takes over the former's rights and obligations, or, in the absence of such succeeding entity or organization, by the State.

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Article 20 No time limit shall be set on the term of protection for an author's rights of authorship and revision and his right to protect the integrity of his work. Article 21 In respect of a work of a citizen, the term of protection for the right of publication and the rights as provided for in Subparagraph 5 through Subparagraph 17 of the first paragraph in Article 10 of this Law shall be the lifetime of the author and fifty years after his death, expiring on December 31 of the fiftieth year after his death.

In the case of a work of joint authorship, the term shall expire on December 31 of the fiftieth year after the death of the last surviving author. In respect of a work of a legal entity or other organization or a work which is created in the course of employment and the copyright except the right of authorship in which is enjoyed by a legal entity or other organization, the term of protection for the right of publication and the rights as provided for in Subparagraph 5 through Subparagraph 17 of the first paragraph in Article 10 of this Law shall be fifty years, expiring on December 31 of the fiftieth year after the first publication of such work; however, such work shall no longer be protected under this Law if it is not published within fifty years after the completion of its creation.

In respect of a cinematographic work, a work created by a process analogous to cinematography or a photographic work, the term of protection for the right of publication and the rights as provided for in Subparagraph 5 through Subparagraph 17 of the first paragraph in Article 10 of this Law shall be fifty years, expiring on December 31 of the fiftieth year after the first publication of such work; however, such work shall no longer be protected under this Law if it is not published within fifty years after the completion of its creation.

Article 22 In the following cases, a work may be used without permission from, and without payment of remuneration to, the copyright owner, provided that the name of the author and the title of the work are mentioned and the other rights enjoyed by the copyright owner in accordance with this Law are not prejudiced:. The provisions of the preceding paragraph shall be applicable also to the rights of publishers, performers, producers of sound recordings and video recordings, radio stations and television stations.

Article 23 Except where the author declares in advance that use of his work is not permitted, passages from a work, a short written work, musical work, a single work of the fine arts or photographic work which has been published may, without permission from the copyright owner, be compiled in textbooks for the purpose of compiling and publishing textbooks for the nine-year compulsory education and for national education planning, provided that remuneration is paid, the name of the author and the title of the work are mentioned, and the other rights enjoyed by the copyright owner in accordance with this Law are not prejudiced.

Article 24 Anyone who exploits another person's work shall conclude a copyright licensing contract with the copyright owner, except where no permission need be obtained under this Law. Article 25 Anyone who transfers any of the rights provided for in Subparagraph 5 through Subparagraph 17 of the first paragraph in Article 10 of this Law shall conclude a written contract. A copyright transfer contract shall include the following main points:. Article 26 The other party may not, without permission from the copyright owner, exercise any right that is not explicitly licensed or transferred by the copyright owner in the contract.

Article 27 The rates of remuneration for the exploitation of a work may be agreed upon by the parties and may also be paid in accordance with the rates fixed by the administrative department for copyright under the State Council in conjunction with the other departments concerned. In the absence of an explicit agreement in the contract, the remuneration shall be paid in accordance with the rates fixed by the said department under the State Council in conjunction with the other departments concerned.

Article 28 No publishers, performers, producers of sound recordings and video recordings, radio stations, television stations, etc. Article 29 A book publisher who intends to publish a book shall conclude a publishing contract with, and pay remuneration to, the copyright owner. Article 30 The exclusive right enjoyed by the book publisher in accordance with the agreement in the contract to publish a work that the copyright owner delivered to him for publishing shall be protected by law, and the work may not be published by others.

Article 31 The copyright owner shall deliver the work within the term specified in the contract. The book publisher shall publish the work in compliance with the quality requirements and within the term as specified in the contract. The book publisher who fails to publish the work within the term specified in the contract shall bear civil liabilities provided for in Article 53 of this Law. When the book publisher reprints or republishes the work, it shall notify the copyright owner of the matter and pay remuneration to him.

If the publisher refuses to reprint or republish the work when the stock of the book is exhausted, the copyright owner shall have the right to terminate the contract. Article 32 Where a copyright owner has submitted the manuscript of his work to a newspaper or periodical publisher for publication and has not received, within 15 days from the newspaper or within 30 days from the periodical publisher, counted from the date of submission of the manuscript, any notification of the said newspaper's or publisher's decision to publish the work, the copyright owner may submit the manuscript of the same work to another newspaper or periodical publisher for publishing, unless the parties have agreed otherwise.

Except where the copyright owner declares that no reprinting or excerpting of his work is permitted, a newspaper or periodical publisher may, after the work is published by another newspaper or periodical publisher, reprint the work or print an abstract of it or print it as reference material, provided that remuneration is paid to the copyright owner in accordance with relevant regulations.

Article 33 A book publisher may, with the permission of the author, revise or abridge the work. A newspaper or periodical publisher may make editorial modifications and abridgments in the language of a work.

Any revision in the contents of the work shall be subject to permission by the author. Article 34 When publishing a work created by adaptation, translation, annotation, arrangement or compilation of a preexisting work, the publisher shall obtain permission from, and pay remuneration to, both the owner of the copyright in the work created by adaptation, translation, annotation, arrangement or compilation and the owner of the copyright in the preexisting work.

Article 35 A publisher shall have the right to permit another person to exploit, or prohibit such person from exploiting, the typographical design of the book or the periodical which he publishes. The term of protection for the right specified in the preceding paragraph shall be ten years, expiring on December 31 of the tenth year after the first publication of the book or the periodical in which the typographical design is used.

Article 36 A performer an individual performer or a performing group who exploits, for a performance, a work created by another person shall obtain permission from, and pay remuneration to, the copyright owner. Where a performance is organized by a person, the organizer shall obtain permission from, and pay remuneration to, the copyright owner. Anyone who exploits, for a performance, a work created by adaptation, translation, annotation or arrangement of a preexisting work shall obtain permission from, and pay remuneration to, both the owner of the copyright in the work created by adaptation, translation, annotation or arrangement and the owner of the copyright in the preexisting work.

Article 37 A performer shall, in respect of his performance, enjoy the following rights:. A person who is authorized exploitation of a work in the manner provided for in Subparagraph 3 through Subparagraph 6 of the preceding paragraph shall, in addition, obtain permission from, and pay remuneration to, the copyright owner. Article 38 No time limit shall be set on the term of protection for the rights provided for in Subparagraphs 1 and 2 of the first paragraph in Article 37 of this Law.

The term of protection for the rights provided for in Subparagraph 3 through Subparagraph 6 of the first paragraph in Article 37 of this Law shall be fifty years, expiring on December 31 of the fiftieth year after the performance takes place. Article 39 A producer of sound recordings or video recordings who exploits, for making a sound recording or video recording, a work created by another person shall obtain permission from, and pay remuneration to, the copyright owner. A producer of sound recordings or video recordings who exploits a work created by adaptation, translation, annotation or arrangement of a preexisting work shall obtain permission from, and pay remuneration to, both the owner of the copyright in the work created by adaptation, translation, annotation or arrangement and the owner of the copyright in the preexisting work.

A producer of sound recordings who exploits, for making a sound recording, a musical work of which a lawful sound recording has been made, may do without permission from the copyright owner, but shall, in accordance with regulations, pay remuneration to the copyright owner; no such work may be exploited where the copyright owner declares that exploitation is not permitted.

Article 40 When making a sound recording or video recording of a performance, the producer shall conclude a contract with, and pay remuneration to, the performer. Article 41 The producer of a sound recording or video recording shall enjoy the right to authorize others' reproducing, distributing or renting the sound recording or video recording or making it available to the public through information network and to receive remuneration therefrom. The term of protection for such right shall be fifty years, expiring on December 31 of the fiftieth year after the first completion of the recording.

Anyone who is authorized reproducing or distributing a sound recording or video recording or making it available to the public through information network shall, in addition, obtain permission from, and pay remuneration to, both the copyright owner and the performer.

Article 42 A radio station or television station that broadcasts an unpublished work created by another person shall obtain permission from, and pay remuneration to, the copyright owner. A radio station or television station that broadcasts a published work created by another person may do without permission from, but shall pay remuneration to, the copyright owner. Article 43 A radio station or television station that broadcasts a published sound recording may do without permission from, but shall pay remuneration to, the copyright owner, unless the parties have agreed otherwise.

Specific measures in this regard shall be formulated by the State Council. Article 44 A radio station or television station shall have the right to prohibit the following acts performed without its permission:. The term of protection for the right specified in the preceding paragraph shall be fifty years, expiring on December 31 of the fiftieth year after the first broadcasting of a program.

Those two Books are created separately from Book 2 to Book 4, not because they are irrelevant to property, but due to the fact that they are closely related to the status of kinship. Another feature of the upcoming Civil Code is that it places the law of property Book 2 to Book 4 before the law of status Book 5 and Book 6.

Availability of Specific Remedies in Chinese Contract Law - Oxford Scholarship

This can be explained by the unique technique of codification, i. Hence, it might seem more logical if the law of status were placed after the law of property in a civil code. In order to figure out the meaning of "the law", we should answer the following questions step by step.

This question should be answered in light of the legislative bodies and their powers in China. China is a single unitary state, which is composed of the Central Government and local governments. The latter consist of 34 provincial local jurisdictions - 23 provinces Jiangsu, Hebeing, Zhejiang, Taiwan, etc. Each provincial government, delegated by the Central Government, may enact its own rules hereinafter local legislation to govern its own affairs within its jurisdiction.

In principle, local legislation must not be inconsistent with or in contradiction to central legislation. According to article 2 of The Constitution of , all power in China belongs to the people and people exercise state power through electing deputies to the National People's Congress hereinafter NPC and local people's congresses at various levels.

Article 3, paragraph 3 of the aforesaid law states, " All administrative, judicial and procuratorial organs of the state are created by the people's congresses to which they are responsible and by which they are supervised. The NPC and the SC-NPC exercise the legislative power of the state article 58 of the aforesaid law while local people's congresses exercise the local legislative power within their jurisdictions article 96 of the aforesaid law. It ought to be noted that standing committees of local people's congresses do not have any legislative power. The NPC " shall enact and amend the basic laws on, inter alia , criminal matters, civil matters, and state authorities " article 7, paragraph 2 The Law on Legislation of , whereas the SC-NPC " shall enact and amend laws other than those that should be made by " the NPC paragraph 3 of the aforesaid article.

In addition, the SC-NPC has the power to interpret a law in case either " The specific meaning of any provisions of a law requires further clarification " or " Any new circumstances appearing after the promulgation of a law require clarification of the basis for the application of the law " article 45 of the aforesaid law.

In addition to national legislation, there is also delegated legislation in China. In this sense, administrative rules are a more detailed form of delegated legislation. Article 72 of the aforesaid law provides that provincial people's congresses " may, according to the specific circumstances and actual needs of the administrative region, enact local regulations, provided that such regulations do not contravene the Constitution, laws, and administrative regulations ".

Since local people's congresses are superior to local governments, the rules of local governments are often delegated legislation secondary to local regulations. The aforementioned laws, regulations, and rules are all made by either legislative bodies or delegated executive bodies. Unfortunately, The Law on Legislation of itself has not clarified the legal authority of judicial interpretations.

Lower people's courts at various levels do not have the power to issue judicial interpretations. The "legislators" and the authority of various laws, regulations, rules, and interpretations are presented as follows:. Neither The General Principles of nor The General Provisions of have clarified what "the law" should be as far as the application of civil law is concerned.

Article 4 of the said Provisions stipulates that " a civil judgment shall cite laws, legislative interpretations or judicial interpretations, and may directly cite the administrative regulations, local regulations " that should be applied. Hence, as a matter of the fact, the SPC thereby treats its judicial interpretations as authoritative as national laws and legislative interpretations in a trial.

Besides, laws, legislative interpretations and judicial interpretations have a higher legal authority than administrative regulations and local regulations. The wording "shall" in the said article 4 suggests that the court is obliged to apply laws and interpretations first when there are available, whereas the wording "may" therein leaves it to the discretion of the court to decide whether to cite a particular regulation or not. Administrative rules have the lowest legal authority in a trial. Article 6 of the aforementioned Provisions rules that where the normative documents other than those as prescribed by the said Articles 4 are confirmed as legal and effective upon examination in accordance with the needs for the trial, such normative documents may be taken as an authority for the reasoning behind a decision.

Therefore, although administrative rules cannot be directly cited in a trial, they can play a supportive role in the formation of a decision if they are considered by the court to be legal and effective. As mentioned before, The Constitution shall have the supreme legal authority, and no laws, regulations or rules may contravene the Constitution article 87 of The Law on Legislation.

Hence, in a narrow sense, The Constitution does not fall under the said "laws". Nonetheless, just like national laws, The Constitution shall also be promulgated and amended by the NPC article 62 of The Constitution. Hence, it was once debatable whether the court is allowed to cite The Constitution directly in the trial of civil cases. This topic is closely related to the famous case of Qi Yuling v.

Mindy Chen-Wishart, Alexander Loke, and Burton Ong

Chen Xiaoqi et al. In the same year, Zaozhuang Intermediate People's Court the trial court made a judgment, ordering the defendants to cease the acts of infringement and pay damages totaling RMB 35, for the plaintiff's nonpecuniary losses, but denying the plaintiff's claim that her right to receive education had been infringed upon. Qi Yuling remained unconvinced by the judgment of the trial court and appealed to Shandong High People's Court the appellate court. The right to receive education is a fundamental right which is provided for by article 46, paragraph 1 of The Constitution - " Citizens of the People's Republic of China have the duty as well as the right to receive education.

On August 13, , the SPC replied as follows [18]. Unfortunately, the Qi Yuling Case has remained the only case that ever cited The Consitution directly since The seemingly promising process of "judicialization of The Constitution" finally ceased when the SPC revoked its reply of in Above all, it is now clear that "the law" in article 10 of The General Provisions of does not include The Constitution.

That is to say, The Constitution is not a source of civil law. Hence, it cannot be cited directly in a civil decision. Traditionally, fundamental rights under a constitution are regarded as rights that are intended to protect people's liberty and property against encroachments done by the government, so that people shall enjoy a certain degree of freedom without interference from the government.

To be specific, two techniques are available to the accomplishment of such a purpose. The application of a custom must be subject to two limitations: According to article 2 of the PCG, guiding cases refer to those closed judgments: Three key provisions regarding the application of a guiding case need to be highlighted as follows:.

A guiding case shall cease to be effective under either of the following two circumstances where: In this regard, it seems that the legal authority of a guiding case is inferior to that of a national law, administrative regulation and judicial interpretation, but it is superior to that of local regulations and administrative rules.

The next question is whether the guiding case system in China indicates a shift towards the Anglo-American legal tradition. Admittedly, the guiding case system is similar to the common law system to the extent that cases can be the source of law. However, the two systems differ significantly in the following aspects:. Hence, the said guiding case system looks very similar to ancient Chinese case systems, which were secondary and supplementary to statutory codes.

The principle refers to "a basic rule, law, or doctrine", especially "one of the fundamental tenets of a system". 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.

Civil and Common Law Perspectives

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.

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