Abstract
Unlike jurisdictions where commercial law code is adopted, PRC has taken the approach of governing commercial law matters with individual statutes, supplemented by numerous judicial interpretations. There are both national and local commercial legislation. Individual commercial statutes in Mainland China falls roughly into two categories: one governs business organizations, and the other governs various commercial transactions. Civil law and commercial law are both recognized as private law by Chinese scholars. Individual commercial law statutes are regarded as special law to civil law. Commercial law legislation in Mainland China only became possible when China started to move from a planned-economy to a market-oriented economy; moreover, commercial law legislation has been part of the economic reform in Mainland China. Given the fast changing social-economic situation in Mainland China, it might be safe to conclude that commercial law in China may remain as special law to civil law and take the form of individual statutes in the foreseeable future.
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Notes
- 1.
Yikun, Zhu, 2003, p. 2.
- 2.
The Maritime Law of the People’s Republic of China was adopted by the Standing Committee of the National People’s Congress (SCNPC) in 1992.
- 3.
The Company Law of the People’s Republic of China was adopted by the SCNPC in 1993 and revised in 1999, 2004 and 2005.
- 4.
The Insurance Law of the People’s Republic of China was adopted by the SCNPC in 1995 and revised in 2002 and 2009.
- 5.
Negotiable Instrument Law of the People’s Republic of China was adopted by the SCNPC in 1995 and revised in 2004.
- 6.
Partnership Enterprise Law of the People’s Republic of China was adopted by the SCNPC in 1997 and revised in 2006.
- 7.
Securities Law of the People’s Republic of China was adopted by the SCNPC in 1998 and revised in 2004 and 2005.
- 8.
Sole Proprietorship Law of the People’s Republic of China was adopted by the SCNPC in 1999.
- 9.
Trust Law of the People’s Republic of China was adopted by the SCNPC in 2001.
- 10.
Mainland China’s first Enterprise Bankruptcy Law (Trial Implementation) was adopted by the SCNPC in 1986 which is only applicable to the State-Owned Enterprises (SOEs). For the bankruptcy of other non-SOEs, it was governed by the Chap, 19 of the Civil Procedure Law adopted by the National People’s Congress (NPC) in 1991. Also there are two articles on the company bankruptcy in the Chap. 8 of the Company Law at that time. However, it was superseded by the Enterprise Bankruptcy Law adopted by the SCNPC in 2006 which is applicable to enterprise legal person and adopts more transparent and uniform procedures.
- 11.
The Provisions of the Supreme People’s Court on Issues Concerning the Application of the Company Law (I) was issued by the Supreme People’s Court on April 28, 2006, and effective as of May 9, 2006. The Provisions of the Supreme People’s Court on Issues Concerning the Application of the Company Law (II) was issued by the Supreme People’s Court on May 12, 2008, and effective as of May 19, 2008. The Provisions of the Supreme People’s Court on Issues Concerning the Application of the Company Law (III) was issued by the Supreme People’s Court on January 27, 2011 and went into effect as of February 16, 2011.
- 12.
Interpretations of the Supreme People’s Court on Issues Concerning the Application of the Insurance Law (I) was issued by the Supreme People’s Court on September 21, 2009, and effective as of October 1, 2009.
- 13.
The Provisions of the Supreme People’s Court on Issues Concerning the Trial of Cases of Negotiable Instrument Disputes was issued by the Supreme People’s Court on November 14, 2000, and effective as of November 21, 2000.
- 14.
The Provisions of the Supreme People’s Court on Issues Concerning the Trial of Civil Compensation Cases Caused by False Statement in Securities Market was issued by the Supreme People’s Court on January 15, 2002, and went into effect as of the date of its promulgation.
- 15.
Provisions of the Supreme People’s Court on Issues Concerning the Application of the Enterprise Bankruptcy Law (I) was issued by the Supreme People’s Court on September 9, 2011, and went into effect as of the date of its promulgation.
- 16.
Fan and Wang, 2011, p. 55.
- 17.
In German, for example, there are unlimited-liability company, limited liability company, stock company and dual company.
- 18.
See art. 123 of the Company Law: A listed company shall have independent directors. And the concrete measures shall be formulated by the State Council.
- 19.
Zhao, 2009, p. 6.
- 20.
Sino-Foreign Equity Joint Venture Law of the Republic of China was adopted by the (National People’s Court) NPC on June 8, 1978, and amended by the NPC respectively on April 4, 1990, and March 15, 2001.
- 21.
Sino-Foreign Contractual Joint Venture Law of the Republic of China was adopted by the NPC on April 13, 1988, and amended by the SCNPC on October 31, 2000.
- 22.
Wholly Foreign Owned Enterprise Law of the Republic of China was adopted by the NPC on April 12, 1986, and amended by the SCNPC on October 31, 2000.
- 23.
Law of the People’s Republic of China on Industrial Enterprises Owned by the Whole People was adopted by the NPC on April 4, 1988.
- 24.
Law of the People’s Republic of China on Township Enterprises was adopted by the SCNPC on October 29, 1996.
- 25.
Law of the People’s Republic of China on the Peasant Professional Cooperative Organization was adopted by the SCNPC on October 31, 2006.
- 26.
At the broad sense of law, Chinese law includes constitution, laws, administrative regulations and ministerial rules, military regulations and rules, local regulations and rules, autonomous region regulations, Special Administrative Region (SAR) laws and regulations, Special Economic Zone (SEZ) regulations and rules. The hierarchy of the law is determined by their respective legislative bodies. The higher the legislative body is, the higher the validity of such law. From NPC, SCNPC, State Council, ministry and commissions, local people’s congresses and local governments, the validity of the laws and regulations formulated by them is descending.
- 27.
Provisional Regulations of the People’s Republic of China on Private Enterprises was issued by the State Council on June 25, 1988.
- 28.
Regulations of the People’s Republic of China on Administration of the Individual Industrial and Commercial Household was formulated by the State Council on April 16, 2011, superseding the Provisional Regulations of the People’s Republic of China on Administration of the Individual Industrial and Commercial Household in Urban and Rural Areas which was issued by the State Council on August 5, 1987.
- 29.
Regulations of the People’s Republic of China on Rural Collectively-owned Enterprise was formulated by the State Council on June 2, 1990.
- 30.
Regulations of the People’s Republic of China on Urban Collectively-owned Enterprise was formulated by the State Council on September 8, 1991.
- 31.
Implementing Regulations of the People’s Republic of China for Sino-Foreign Equity Joint Venture Law was formulated by the State Council on September 20, 1983 and amended by the State Council in 1986, 1987 and 2001.
- 32.
Detailed Rules of the People’s Republic of China for Sino-Foreign Contractual Joint Venture Law was formulated by the State Council on September 4, 1995.
- 33.
Detailed Rules of the People’s Republic of China for Wholly Foreign Owned Enterprise Law was issued by the former Ministry of Foreign Trade and Economic Cooperation and approved by the State Council on December 12, 1990, and amended in 2001.
- 34.
Supreme People’s Court, 2011.
- 35.
The Inheritance Law of the People’s Republic of China was adopted at the Third Session of the Sixth National People’s Congress and promulgated by Order No. 24 of the President of the People’s Republic of China on April 10, 1985, and effective as of October 1, 1985.
- 36.
General Principles of the Civil Law of the People’s Republic of China was 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.
- 37.
The Guarantee Law of the People’s Republic of China was adopted at the 14th Meeting of the Standing Committee of the Eighth National People’s Congress on June 30, 1995, promulgated by Order No. 50 of the President of the People’s Republic of China on June 30, 1995, and effective as of October 1, 1995.
- 38.
The Contract Law of the People’s Republic of China was adopted at the Second Session of the Ninth National People’s Congress on March 15, 1999 and promulgated by Order No. 15 of the President of the People’s Republic of China on March 15, 1999, and effective as of October 1, 1999.
- 39.
The Adoption Law of the People’s Republic of China was adopted at the 23rd Meeting of the Standing Committee of the 7th National People’s Congress on December 29, 1991 and revised in accordance with the Decision on the Revision of the Adoption Law of the People’s Republic of China taken by the 5th Meeting of the Standing Committee of the 9th National People’s Congress on November 4, 1998, and the Amendment came into force on April 1, 1999.
- 40.
The Marriage Law of the People’s Republic of China was adopted at the Third Session of the Fifth National People’s Congress and promulgated by Order No. 9 of the Chairman of the Standing Committee of the National People’s Congress on September 10, 1980 and revised in accordance with the Decision of the Standing Committee of the National People’s Congress on Amending the Marriage Law of the People’s Republic of China. The Amendment was adopted at the 21st Meeting of the Standing Committee of the Ninth National People’s Congress of the People’s Republic of China on April 28, 2001 and hereby promulgated and went into effect as of the date of its promulgation.
- 41.
The Real Right Law of the People’s Republic of China was adopted at the Fifth Session of the Tenth National People’s Congress and promulgated by Oder No. 62 of the President of the People’s Republic of China on March 16, 2007, and effective as of October 1, 2007.
- 42.
The Tort Liability Law of the People’s Republic of China was adopted at the 12th Meeting of the Standing Committee of the 11th National People’s Congress and promulgated by Oder No. 21 of the President of the People’s Republic of China on December 26, 2009, and effective as of July 1, 2010.
- 43.
The Law on the Application of Law for Foreign-related Civil Relations of the People’s Republic of China was adopted at the 17th Meeting of the Standing Committee of the 11th National People’s Congress and promulgated by Oder No. 36 of the President of the People’s Republic of China on October 28, 2010, and effective as of April 1, 2011.
- 44.
Opinions of the Supreme People’s Court on Issues Concerning the Implementation of the Inheritance Law was issued by the Supreme People’s Court on September 11, 1985.
- 45.
Opinions of the Supreme People’s Court on Issues Concerning the Implementation of the General Principles of the Civil Law was issued by the Supreme People’s Court on January 26, 1988, and effective as of April 4, 1988.
- 46.
Interpretations of the Supreme People’s Court on Issues Concerning the Application of the Guarantee Law was issued by the Supreme People’s Court on December 8, 2000, and effective as of December 13, 2000.
- 47.
Interpretations of the Supreme People’s Court on Issues Concerning the Application of the Contract Law (I) was issued by the Supreme People’s Court on December 19, 1999, and effective as of December 29, 1999. While Interpretations of the Supreme People’s Court on Issues Concerning the Application of the Contract Law (II) was issued by the Supreme People’s Court on April 24, 2009, and effective as of May 13, 2009.
- 48.
Interpretations of the Supreme People’s Court on Issues Concerning the Application of the Marriage Law (I) was issued by the Supreme People’s Court on December 25, 2001, and effective as of December 27, 2001. Interpretations of the Supreme People’s Court on Issues Concerning the Application of the Marriage Law (II) was issued by the Supreme People’s Court on December 25, 2003, and effective as of April 1, 2004. Interpretations of the Supreme People’s Court on Issues Concerning the Application of the Marriage Law (III) was issued by the Supreme People’s Court on August 9, 2011 and went into effect as of the date of its promulgation.
- 49.
Opinions of the Ministry of Justice’s on Issues Concerning the Implementation of the Adoption Law was issued by the Ministry of Justice on March 3, 2000.
- 50.
Yumin, Zhang, 2010, p. 140.
- 51.
Yumin, Zhang, 2010, p. 142.
- 52.
Qingyu, Zhu 2010, p. 486.
- 53.
Yumin, Zhang, 2010, p. 152; 166.
- 54.
Wenxian, Zhang, 2007, p. 104.
- 55.
Wang, 2010, pp. 9–11.
- 56.
Yikun, Zhu, 2003, p. 4.
- 57.
Yikun, Zhu, 2003, p. 2.
- 58.
The 15 kinds of classified contracts are: Sales contracts, Contracts for the Supply and Consumption of Electricity, Water, Gas or Heat, Donation Contracts, Loan Contracts, Lease Contracts, Contracts for Financial Lease, Work Contracts, Construction Project Contracts, Carriage Contracts, Technology Contracts, Contracts of Deposit, Warehousing Contracts, Entrustment Contracts, Brokerage Contracts and Intermediation Contracts.
- 59.
Lou, 2010, p. 69.
- 60.
Article 405 of the Contract Law: when the agent has accomplished the entrusted affairs, the principal shall pay remuneration to the agent. If the entrustment contract is dissolved or the entrusted affairs cannot be accomplished due to reasons not attributable to the agent, the principal shall pay corresponding remuneration to the agent. If the parties have stipulated otherwise, such stipulations shall govern.
- 61.
Fan and Wang, 2011, p. 126.
- 62.
Fan and Wang, 2011, p. 127.
- 63.
General guarantee means that the guarantor may refuse to bear guarantee responsibility to the creditor prior to court proceedings or arbitration over the dispute concerning the principal contract and failure again to pay such debt after compulsory enforcement over the debtor’s property according to the law.
- 64.
Joint and several liability guarantee means that if the debtor fails to pay his debt at the expiry of term of execution as stipulated by the principal contract, the creditor may require the debtor to pay his debt and also may require the guarantor to bear guarantee responsibility within the limit of his guarantee.
- 65.
Fan and Wang, 2011, pp. 81–82.
- 66.
Article 19 of the Guarantee Law: If no agreement or the agreement is not clear on the guarantee mode by the parties, the guarantee liability shall be born according to the joint and several liability.
- 67.
Lou, 2010, p. 70.
- 68.
Article 106 of Real Right Law: In case a person unauthorized to dispose a realty or chattel transfers the realty or chattel to a transferee, the owner is entitled to recover the realty or chattel. The transferee shall obtain the ownership of the realty or chattel if meeting all of the following conditions, unless it is otherwise prescribed by law:
(1) to accept the realty or chattel in good faith;
(2) to purchase the realty or chattel at a reasonable price; and
(3) in case registration is required by law, the transferred realty or chattel shall have been registered, while in case registration is not required, the delivery thereof shall have been accomplished.
In case, according to the preceding paragraph, a transferee obtains the ownership of a realty or chattel, the original owner may require the person unauthorized to dispose of the realty or chattel to compensate for his losses.
In case a related party obtains any other form of real right in good faith, the preceding two paragraphs shall apply by reference.
- 69.
Civil Law Department of Legislative Affairs Commission of the NPC Standing Committee, 2007, p. 193.
- 70.
Wolf, 2002, p. 290.
- 71.
Lou, 2010, p. 70.
- 72.
Fan & Wang, 2011, p. 127.
- 73.
Fan & Wang, 2011, p. 127.
- 74.
Wang, 2005, p. 32.
- 75.
Fan, 2009, p. 48.
- 76.
Wang, 2005, p. 39.
- 77.
Wang, 2005, p. 41.
- 78.
Wang, 2007, pp. 39–40.
- 79.
The Shenzhen Special Economic Zone Commercial Regulations was adopted by Standing Committee of People’s Congress of Shenzhen on June 30, 1999, and amend on April 16, 2004. The Shenzhen SEZ Commercial Regulations has eight chaptets which are General Provisions, Merchants, Registration of Merchants, Names of Merchants and Transfer of Business, Commercial Account Books, Commercial Employees, Agents and Supplementary Provisions.
- 80.
Yikun, Zhu, 2003, p. 2.
- 81.
The Civil Code draft proposed by the Legislative Affairs Commission of the SCNPC has nine parts including the General Parts, Real Right Law, Contract Law, Personal Right Law, Marriage Law, Adoption Law, Inheritance Law, Tort Liability Law, Law of the Application of Law for Foreign-related Civil Relations. The Civil Code draft proposed by Prof. Liang Huixin has seven parts containing the General Part, Real Right, General Debt Law, Contracts, Torts, Domestic Relation and Inheritance, while another version proposed by Prof. Wang Liming has eight parts containing the General Part, Personality Right Law, Domestic Relation Law, Inheritance Law, Real Right Law, General Debt Law, Contract Law, Tort Liability Law. From this it is evident that there is no effort to incorporate those specific commercial statutes into the Civil Code.
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Lou, J. (2014). The Evolution of Commercial Law in the People’s Republic of China (PRC). In: Wang, WY. (eds) Codification in East Asia. Ius Comparatum - Global Studies in Comparative Law, vol 2. Springer, Cham. https://doi.org/10.1007/978-3-319-03446-1_7
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