Chinese Contract Law - Theory & Practice, Second Edition
Autor Mo Zhangen Limba Engleză Hardback – 18 dec 2019
The second edition comprises the latest developments in contract legislation, adjudication and practices in China, including the newly adopted laws, judicial interpretations and guiding cases. It emphasizes contextual distinctions and transactional considerations relevant to contract research and practice. The book provides a meaningful tool to get inside the contemporary contract law of China.
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Specificații
ISBN-13: 9789004414761
ISBN-10: 9004414762
Dimensiuni: 155 x 235 mm
Greutate: 0.82 kg
Ediția:2Nouă
Editura: Brill
Colecția Brill | Nijhoff
ISBN-10: 9004414762
Dimensiuni: 155 x 235 mm
Greutate: 0.82 kg
Ediția:2Nouă
Editura: Brill
Colecția Brill | Nijhoff
Cuprins
Preface to the Second Edition
Acknowledgments
Introduction
1 Mao’s “Plain Paper” Theory and Legal Nihilism in China
2 Post-Mao Reconstruction of the Legal System
3 Contract Law Legislation
3.1Enactment of the General Principles of Civil Law
3.2Adoption of the Unified Contract Law
3.3The 2017 General Provisions of Civil Law
3.4The 2019 Foreign Investment Law
4 Judicial Interpretation and Guiding Cases
5 The Ideology of “Governing the Country by Law”
6 Unsolved Issue: Judicial Independence
1 Contract Law in the Chinese Tradition
1 Concept of Contract
1.1Chinese Tradition
1.2Civil Law Influence
1.3Theories of Contract Law
1.3.1 Economic Means Theory
1.3.2 Civil Act Theory
1.3.3 Agreement Theory
1.3.4 Exchange Theory
1.4Definition of Contract
2 Contract Classification
2.1Named and Unnamed Contracts
2.2Formal and Informal Contracts
2.3Consensual and Real Contracts
2.4Onerous and Gratuitous Contracts
2.5Unilateral and Bilateral Contracts
3 Application of the Contract Law
4 Contract and the Socialist Market Economy
5 Contracts and the State Plan
2 Freedom of Contract in China
1 Conception of Freedom
2 Right of Parties to a Contract
3 Limitations on Party Autonomy
3.1Legal Compliance
3.2State Plan Mandate
3.3Administrative Supervision
3.4Government Approval and Other Special Requirements
3 Enforceability of Contracts
1 Obligatio and Contract Obligations
2 Governing Principles of Contracts
2.1Equality and Voluntariness
2.2Fairness and Good Faith
2.3Legality and Public Interests
2.4Observance of Contract
3 Pre-Contractual Liabilities
4 Formation of Contracts
1 Offer
1.1Offer and Invitation for Offer
1.2Legal Effect of Offers
1.3Termination of an Offer
1.3.1 Withdrawal of Offer
1.3.2 Revocation of Offer
1.3.3 Void Offers
2 Acceptance
2.1Requirements for Acceptance
2.2Withdrawal of Acceptance
2.3Late Acceptance
2.4Late Arrival of Acceptance
2.5Acceptance and Conclusion of Contract
3 Conclusion and Effectiveness of Contracts
4 Formality of Contracts
5 Incorporation of the State Plan and Government Approval
5 Terms of Contracts
1 Terms Generally Included in a Contract
2 Interpretation of a Contract
2.1Contract Interpretation Approaches
2.2Contract Interpretation Theories
2.3Contract Interpretation under the Contract Law
3 Supplementary Agreement for Uncertain or Missing Terms
4 Proof of the Terms of a Contract
5 Standard Terms
6 Disclaimers
6 Contract Defenses—Validity Issues
1 Issues at Stake
2 Capacity of the Parties—Effect-to-be-Determined Contract
2.1Contract by a Person with Limited Capacity for Civil Conduct
2.2Contract by an Agent without Due Authorization
2.3Right to Request Ratification and to Rescind a Contract
2.4Contract by a Person with No-Right-to-Dispose
3 Void Contracts
3.1Fraud or Duress
3.1.1 Fraud
3.1.1.1 Intent to Deceive
3.1.1.2 Conduct of Deceit
3.1.1.3 Reliance
3.1.1.4 Mistaken Manifestation of the Consent of the Deceived
3.1.2 Duress
3.2Malicious Collusion to Damage the Interests of the State, a Collective, or a Third Party
3.3Use of a Contract for Illegal Purpose
3.4Harm to the Social Public Interest
3.5Violation of Compulsory Provisions of Law or Regulations
4 Voidable Contracts
4.1Exploitation of the Other Party’s Precarious Position
4.2Material Misunderstanding
4.3Obvious Unfairness
5 Consequences of Void and Voidable Contracts
5.1Avoidance from the Very Beginning
5.2Partial Avoidance and the Remaining Part of the Contract
5.3Independence of a Dispute Settlement Clause
5.4Restitution and Compensation
6 Conditions Affecting the Validity of Contacts
7 Performance of Contracts
1 Performance Principles
1.1Complete and Adequate Performance
1.2Good Faith Performance
2 Determination of the Obligations to Be Performed
3 Right of Defense to Non-Performance
3.1Fulfillment Plea
3.2Unrest Defense
4 Protective Measures for Performance
4.1Right of Subrogation
4.1.1 Conditions for Subrogation
4.1.2 Action to Seek Subrogation
4.1.3 Defenses of the Obligor’s Debtor
4.1.4 Legal Effect of Subrogation
4.2Right of Cancellation
5 Guarantee of Performance
5.1Suretyship
5.2Security Interest
5.3Money Deposit
5.4Lien
6 Changes of Circumstances during Performance
6.1Changes Related to the Parties
6.2Rebus Sic Stantibus
8 Modification of Contract and Assignment
1 Modification
2 Assignment
2.1Assignment of Contractual Rights
2.1.1 Formality of Assignment
2.1.2 Non-Assignable Rights
2.1.3 Effect of Assignment
2.1.4 Right of Defense in Assignment
2.2Delegation of Contractual Obligations
2.2.1 Delegation as a Transfer of Debts in Whole or in Part
2.2.2 Subordinate Duties
2.2.3 Non-Delegable Duties
2.2.4 Transfer of Obligor’s Defenses against Obligee
3 Comprehensive Assignment
9 Rescission and Termination of Contracts
1 Rescission
1.1Rescission by Agreement
1.2Rescission by the Provisions of Law
1.2.1 Force Majeure
1.2.2 Breach of Contract
1.2.2.1 Anticipatory Repudiation
1.2.2.2 Unreasonable Delay in Performance
1.2.2.3 Frustration of the Contract Purpose
1.2.3 Other Reasons Provided by the Law
1.3Rescission Notice
1.4Legal Consequences of Rescission
2 Termination
2.1Performance
2.2Offset
2.3Deposit
2.4Exemption
2.5Merger
10 Breach of Contracts and Remedies
1 Liability for Breach: a Chinese Concept
2 Liability Imputation
3 Breach
3.1Anticipatory Repudiation
3.2Actual Breach
4 Remedies
4.1Continuing Performance
4.1.1 Monetary Obligation
4.1.2 Non-Monetary Obligation
4.1.2.1 Impossibility Rule
4.1.2.2 Impracticability Rule
4.1.2.3 Rule of Timing
4.2Remedial Measures
4.3Damages
4.3.1 Compensatory Damages
4.3.2 Liquidated Damages
4.3.3 Punitive Damages
4.3.4 Earnest Money
5 Mitigation Duty
6 Exemption of Liability
11 Third Party Interests
1 Third Party Receiving Performance
2 Third Party Performing the Contract
3 Breach Caused by a Third Party
4 Bona Fide Third Party
12 International Contracts
1 Foreign Elements
2 Choice of Law in International Contracts
2.1Choice of Law by the Parties
2.2Application of Law Absent the Parties’ Choice
2.3Application of International Law
3 Choice of Forum in International Contracts
4 Dispute Settlement Mechanism
4.1Reconciliation
4.2Mediation
4.3Arbitration
4.4Litigation
5 Statute of Limitations
13 Labor Contracts
1 Labor Contract Legislation and Legal Framework
2 Concept of Labor Contract
2.1Definition
2.2Categories
3 Formation
3.1Requirements
3.2Probationary Period
3.3Collective Contract
3.4Labor Dispatch
4 Validity and Enforceability
5 Performance and Modificatiom
5.1Performance
5.2Modification
6 Rescission and Termination
6.1Rescission
6.2Termination
7 Legal Liabilities
8 Dispute Settlement
9 Government Supervision and Review
Index
Acknowledgments
Introduction
1 Mao’s “Plain Paper” Theory and Legal Nihilism in China
2 Post-Mao Reconstruction of the Legal System
3 Contract Law Legislation
3.1Enactment of the General Principles of Civil Law
3.2Adoption of the Unified Contract Law
3.3The 2017 General Provisions of Civil Law
3.4The 2019 Foreign Investment Law
4 Judicial Interpretation and Guiding Cases
5 The Ideology of “Governing the Country by Law”
6 Unsolved Issue: Judicial Independence
1 Contract Law in the Chinese Tradition
1 Concept of Contract
1.1Chinese Tradition
1.2Civil Law Influence
1.3Theories of Contract Law
1.3.1 Economic Means Theory
1.3.2 Civil Act Theory
1.3.3 Agreement Theory
1.3.4 Exchange Theory
1.4Definition of Contract
2 Contract Classification
2.1Named and Unnamed Contracts
2.2Formal and Informal Contracts
2.3Consensual and Real Contracts
2.4Onerous and Gratuitous Contracts
2.5Unilateral and Bilateral Contracts
3 Application of the Contract Law
4 Contract and the Socialist Market Economy
5 Contracts and the State Plan
2 Freedom of Contract in China
1 Conception of Freedom
2 Right of Parties to a Contract
3 Limitations on Party Autonomy
3.1Legal Compliance
3.2State Plan Mandate
3.3Administrative Supervision
3.4Government Approval and Other Special Requirements
3 Enforceability of Contracts
1 Obligatio and Contract Obligations
2 Governing Principles of Contracts
2.1Equality and Voluntariness
2.2Fairness and Good Faith
2.3Legality and Public Interests
2.4Observance of Contract
3 Pre-Contractual Liabilities
4 Formation of Contracts
1 Offer
1.1Offer and Invitation for Offer
1.2Legal Effect of Offers
1.3Termination of an Offer
1.3.1 Withdrawal of Offer
1.3.2 Revocation of Offer
1.3.3 Void Offers
2 Acceptance
2.1Requirements for Acceptance
2.2Withdrawal of Acceptance
2.3Late Acceptance
2.4Late Arrival of Acceptance
2.5Acceptance and Conclusion of Contract
3 Conclusion and Effectiveness of Contracts
4 Formality of Contracts
5 Incorporation of the State Plan and Government Approval
5 Terms of Contracts
1 Terms Generally Included in a Contract
2 Interpretation of a Contract
2.1Contract Interpretation Approaches
2.2Contract Interpretation Theories
2.3Contract Interpretation under the Contract Law
3 Supplementary Agreement for Uncertain or Missing Terms
4 Proof of the Terms of a Contract
5 Standard Terms
6 Disclaimers
6 Contract Defenses—Validity Issues
1 Issues at Stake
2 Capacity of the Parties—Effect-to-be-Determined Contract
2.1Contract by a Person with Limited Capacity for Civil Conduct
2.2Contract by an Agent without Due Authorization
2.3Right to Request Ratification and to Rescind a Contract
2.4Contract by a Person with No-Right-to-Dispose
3 Void Contracts
3.1Fraud or Duress
3.1.1 Fraud
3.1.1.1 Intent to Deceive
3.1.1.2 Conduct of Deceit
3.1.1.3 Reliance
3.1.1.4 Mistaken Manifestation of the Consent of the Deceived
3.1.2 Duress
3.2Malicious Collusion to Damage the Interests of the State, a Collective, or a Third Party
3.3Use of a Contract for Illegal Purpose
3.4Harm to the Social Public Interest
3.5Violation of Compulsory Provisions of Law or Regulations
4 Voidable Contracts
4.1Exploitation of the Other Party’s Precarious Position
4.2Material Misunderstanding
4.3Obvious Unfairness
5 Consequences of Void and Voidable Contracts
5.1Avoidance from the Very Beginning
5.2Partial Avoidance and the Remaining Part of the Contract
5.3Independence of a Dispute Settlement Clause
5.4Restitution and Compensation
6 Conditions Affecting the Validity of Contacts
7 Performance of Contracts
1 Performance Principles
1.1Complete and Adequate Performance
1.2Good Faith Performance
2 Determination of the Obligations to Be Performed
3 Right of Defense to Non-Performance
3.1Fulfillment Plea
3.2Unrest Defense
4 Protective Measures for Performance
4.1Right of Subrogation
4.1.1 Conditions for Subrogation
4.1.2 Action to Seek Subrogation
4.1.3 Defenses of the Obligor’s Debtor
4.1.4 Legal Effect of Subrogation
4.2Right of Cancellation
5 Guarantee of Performance
5.1Suretyship
5.2Security Interest
5.3Money Deposit
5.4Lien
6 Changes of Circumstances during Performance
6.1Changes Related to the Parties
6.2Rebus Sic Stantibus
8 Modification of Contract and Assignment
1 Modification
2 Assignment
2.1Assignment of Contractual Rights
2.1.1 Formality of Assignment
2.1.2 Non-Assignable Rights
2.1.3 Effect of Assignment
2.1.4 Right of Defense in Assignment
2.2Delegation of Contractual Obligations
2.2.1 Delegation as a Transfer of Debts in Whole or in Part
2.2.2 Subordinate Duties
2.2.3 Non-Delegable Duties
2.2.4 Transfer of Obligor’s Defenses against Obligee
3 Comprehensive Assignment
9 Rescission and Termination of Contracts
1 Rescission
1.1Rescission by Agreement
1.2Rescission by the Provisions of Law
1.2.1 Force Majeure
1.2.2 Breach of Contract
1.2.2.1 Anticipatory Repudiation
1.2.2.2 Unreasonable Delay in Performance
1.2.2.3 Frustration of the Contract Purpose
1.2.3 Other Reasons Provided by the Law
1.3Rescission Notice
1.4Legal Consequences of Rescission
2 Termination
2.1Performance
2.2Offset
2.3Deposit
2.4Exemption
2.5Merger
10 Breach of Contracts and Remedies
1 Liability for Breach: a Chinese Concept
2 Liability Imputation
3 Breach
3.1Anticipatory Repudiation
3.2Actual Breach
4 Remedies
4.1Continuing Performance
4.1.1 Monetary Obligation
4.1.2 Non-Monetary Obligation
4.1.2.1 Impossibility Rule
4.1.2.2 Impracticability Rule
4.1.2.3 Rule of Timing
4.2Remedial Measures
4.3Damages
4.3.1 Compensatory Damages
4.3.2 Liquidated Damages
4.3.3 Punitive Damages
4.3.4 Earnest Money
5 Mitigation Duty
6 Exemption of Liability
11 Third Party Interests
1 Third Party Receiving Performance
2 Third Party Performing the Contract
3 Breach Caused by a Third Party
4 Bona Fide Third Party
12 International Contracts
1 Foreign Elements
2 Choice of Law in International Contracts
2.1Choice of Law by the Parties
2.2Application of Law Absent the Parties’ Choice
2.3Application of International Law
3 Choice of Forum in International Contracts
4 Dispute Settlement Mechanism
4.1Reconciliation
4.2Mediation
4.3Arbitration
4.4Litigation
5 Statute of Limitations
13 Labor Contracts
1 Labor Contract Legislation and Legal Framework
2 Concept of Labor Contract
2.1Definition
2.2Categories
3 Formation
3.1Requirements
3.2Probationary Period
3.3Collective Contract
3.4Labor Dispatch
4 Validity and Enforceability
5 Performance and Modificatiom
5.1Performance
5.2Modification
6 Rescission and Termination
6.1Rescission
6.2Termination
7 Legal Liabilities
8 Dispute Settlement
9 Government Supervision and Review
Index
Notă biografică
Mo Zhang is a James E. Beasley Professor of Law at Temple University Beasley School of Law, USA, and a Specially Invited Professor of Law of Tsinghua University Law School, China. He earned an LL.B and LL.M degrees from China University Political Science and Law, an LL.M from the University of Michigan, and a SJD from the University of Pennsylvania. Professor Zhang has published numerous articles in both American and Chinese law journals, and is the author of Chinese Contract Law (Brill 2006) and Introduction to Chinese Torts Law (Tsinghua University Press, 2014).