《合同法》司法解释一中英文对照.docx

1、合同法司法解释一中英文对照Interpretations The Supreme Peoples Court of Certain Issues concerning The Application of The Contract Law of The Peoples Republic of China(Part One)最高人民法院公告最高人民法院关于适用中华人民共和国合同法若干问题的解释（一）已于年月日由最高人民法院审判委员会第次会议通过，现予公布，自年月日起施行。December 29, 1999 一九九九年十二月十九日Interpretations The Supreme People

2、s Court of Certain Issues concerning The Application of The Contract Law of The Peoples Republic of China(Part One)最高人民法院关于适用中华人民共和国合同法若干问题的解释（一）FaShi 1999 No.19 法释（1999）19号The Supreme Peoples Courts Interpretations of Certain Issues Concerning the Application of the Contract Law of the Peoples Repu

3、blic of China(part One) is adopted at the 1090th Session of the Adjudication Committee of the Supreme Peoples Court on December 1, and is promulgated now, this law will be effective as of December 29,1999. Pursuant to The Contract Law of the Peoples Republic of China (hereinafter the Contract Law),

4、and with a view to facilitating the proper adjudication of contractual disputes, we hereby promulgate the following interpretations of certain issues concerning the application of the Contract Law by Peoples Courts:（1999年12月1日最高人民法院审判委员会第1090次会议通过）为了正确审理合同纠纷案件，根据中华人民共和国合同法（以下简称合同法）的规定，对人民法院适用合同法的有关问

5、题作出如下解释：I. Scope of Application of the Law一、法律运用范围Article 1 Where a suit is brought to a Peoples Court in respect of a dispute arising out of a contract formed after the operative date of the Contract Law, the provisions of the Contract Law shall apply; where a suit is brought to a Peoples Court in

6、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 effect 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 th

7、e Contract Law may apply.第一条 合同法实施以后成立的合同发生纠纷起诉到人民法院的，适用合同法的规定；合同法实施以前成立的合同发生纠纷起诉到人民法院的，除本解释另有规定的以外，适用当时的法律规定，当时没有法律规定的，可以适用合同法的有关规定。Article 2 Where a contract was formed before the operative date of the Contract Law, but the prescribed time limit for performance extends beyond, or commences after,

8、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.第二条 合同成立于合同法实施之前，但合同约定的履行期限跨越合同法实施之日或者履行期限在合同法实施之后，因履行合同发生的纠纷，适用合同法第四章的有关规定。Article 3 In determining the validity of a contract formed before th

9、e operative date of the Contract Law, if application 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 Peoples Court shall apply the Contract Law.第三条 人民法院确认合同效力时，对合同法实施以前成立的合同，适用当时的法律合同无效而适用合同法合同有效的，则适用合同法。Articl

10、e 4 After the Contract Law became operative, a Peoples Court may only invalidate a contract in accordance with laws adopted by the National Peoples Congress or its Standing Committee, or administrative regulations adopted by the State Council, and may not invalidate a contract in accordance with any

11、 local statutes or administrative rules.第四条 合同法实施以后，人民法院确认合同无效，应当以全国人大及其常委会制定的法律和国务院制定的行政法规为依据，不得以地方性法规、行政规章为依据。Article 5 Where a Peoples Court re-adjudicates a case on which a final judgment has been rendered, the Contract Law does not apply.第五条 人民法院对合同法实施以前已经作出终审裁决的案件进行再审，不适用合同法。II. Time Limit for

12、 Action二、诉讼时效Article 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 one year between the date on which the party knew or should have known that its right was inf

13、ringed and the operative date of the Contract Law, the Peoples 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 shall be two years.第六条 技术合同争议当事人的权利受到侵害的事实发生在合同法实施之前，自当事人知道或者应当知道其权利受到侵害之日起至合同法实施之日超过一年的，人民法院不保护；尚未超过

14、一年的，其提起诉讼的时效期间为二年。Article 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 Peoples 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.第七条 技术进出口合同争议当事人的权利受到侵害的事实发生在合同法实施之前，自当事人知道或者应当知道其权利受到侵害之日起至

16、合同法施行之日超过二年的，人民法院不予保护；尚未超过二年的，其提起诉讼的时效期间为四年。Article 8 The time period of one year set out in Article 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 ext

17、ension of time limit for action.第八条 合同法第五十五条规定的“一年”、第七十五条和第一百零四条第二款规定的“五年”为不变期间，不适用诉讼时效中止。中断或者延长的规定。III. Validity of Contracts三、合同效力Article 9 Where as set forth in Paragraph 2 of Article 44 of the Contract Law, the relevant law or administration regulation provides that the effectiveness of a certai

18、n 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 parties in the trial of first instance, the parties still fail to carry out the relevant approval procedure, or approval and regis

19、tration procedures, as the case may be, the Peoples Court shall rule that the contract has not yet taken effect; if the relevant law or administration regulation requires that a certain contract be registered without subjecting its effectiveness to such registration, then failure to effect registrat

20、ion 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 right 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

21、 Article 77, Article 87, and Paragraph 2 of Article 96 of the Contract Law, the provisions of the previous Paragraph apply.第九条 依照合同法第四十四条第二款的规定，法律、行政法规规定合同应当办理批准手续，或者办理批准、登记等手续才生效，在一审法庭辩论终结前当事人仍未办理批准手续的，或者仍未办理批准、登记等手续的，人民法院应当认定该合同未生效；法律、行政法规规定合同应当办理登记手续，但未规定登记后生效的，当事人未办理登记手续不影响合同的效力，合同标的物所有权及其他物权不能转

22、移）合同法第七十七条第二款、第八十七条、第九十六条第二款所列合同变更、转让、解除等情形，依照前款规定处理。Article 10 Where the parties entered into a contract the subject matter of which was outside their scope of business, the Peoples Court shall not invalidate the contract on such ground, except where conclusion of the contract was in violation of s

23、tate restriction concerning, or licensing requirement for, a particular business sector, or in violation of any law or administrative regulation prohibiting the parties from participation in a particular business sector.第十条 当事人超越经营范围订立合同，人民法院不因此认定合同无效。但违反国家限制经营、特许经营以及法律。行政法规禁止经营规定的除外。IV. Subrogation

24、四、代位权Article 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:第十一条 债权人依照合同法第七十三条的规定提起代位权诉讼，应当符合下列条件：(1) The obligees creditors right against the obligor is lawful;（一）债权人对债务人的债权合法；(2) The obligors delay in exercisi

25、ng the creditors right due to it has caused harm to the obligee;（二）债务人怠于行使其到期债权，对债权人造成损害；(3) The creditors right of the obligor is due;（三）债务人的债权已到期；(4) The creditors right of the obligor is not exclusively personal to it.（四）债务人的债权不是专属于债务人自身的债权。Article 12 As referred to in Paragraph 1 of Article 73,

26、a creditors 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 life insurance, or, a personal injury claim.第十二条 合同法第七十三条第一款规定的专属于债务人自身的债

27、权，是指基于扶养关系、抚养关系、赡养关系、继承关系产生的给忖请求权和劳动报酬、退休金、养老金、抚恤金。安置费、人寿保险、人身伤害赔偿请求权等权利。Article 13 The article Where the obligor delayed in exercising its creditors 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 obl

28、igor fails to render performance which is due to the obligee, and further, it has failed to enforce a creditors 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 obligees realization of t

29、he creditors 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 creditors right due to it, the secondary obligor bears the burden of proof.第十三条 合同法第七十三条规定的“债务人怠于行使其到期债权，对债权人造成损害的”，是指债务人不履行其对债权人的到期债务，又不以诉讼方式或者仲裁

30、方式向其债务人主张其享有的具有金钱给付内容的到期债权，致使债权人的到期债权未能实现。次债务人（即债务人的债务人）不认为债务人有怠于行使其到期债权情况的，应当承担举证责任。Article 14 Where an obligee brings a suit of subrogation pursuant to Article 73 of the Contract Law, jurisdiction shall vest in the Peoples Court in the place where the defendant is domiciled.第十四条 债权人依照合同法第七十三条的规定提起

31、代位权诉讼的，由被告住所地人民法院管辖。Article 15 Where after bringing a suit against an obligor to a Peoples Court, an obligee brings a suit of subrogation against a secondary obligor to the same court, if such suit complies with the provisions of Article 13 hereof as well as the conditions for bringing a suit set fo

32、rth in Article 108 of the Civil Procedural Law of the Peoples Republic of China, the court shall accept such suit; where such suit does not comply with Article 13 hereof, the court shall direct the obligee to bring a separate suit to the Peoples 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 Peoples Court adjudicating the suit of subrogation against