A report delivered at the Second Session of the Ninth National People's Congress on March 9, 1999 in Beijing
1999年3月9日北京 第九屆全國人民代表大會第二次會議上提交報告
1. The Scope of Application
The Draft Contract law stipulates that a contract means an agreement whereby the subjects with equal status, that is, natural persons, legal persons and other organizations, establish, alter or terminate civil right - creating an obligatory relationship between them. This provision is made in accordance with the General Principles of the Civil Law: First, what the contact applies to is civil relationship between subjects with equal status. The administrative activities of the government to maintain economic order according to law come under the category of administrative relationship, not civil relationship and are therefore governed by administrative laws, not by the contract law; the internal managerial relationships of legal persons and other organizations are governed by laws on companies or enterprises, not by the contract law, either. Secondly, the contract law mainly governs the economic and trade relationship between legal persons and other organizations, at the same time including the contractual-legal relationship arising from marriage, adoption, guardianship, etc. are not governed by the contract law. Compared with that of the three existing contract laws, the scope of application of the Draft Contract Law is appropriately enlarged.
適用范圍
合同法草案規定,合同是指處于平等地位的自然人、法人、其它組織之 間建立、變更、終止民事權利和義務關系的協議。這種規定與民法通則是一 致的。第一,合同法適用于處理平等主體之間的民事關系。政府依法維持經 濟秩序的管理活動,屬于行政范疇,不是民事關系,因此受行政法律的支配, 而不受合同法的支配,法人、其它組織的內部管理關系,受公司法或企業法 的支配,也不受合同法支配。第二,合同法主要處理法人和其它組織之間的 經濟貿易關系,同時包括婚姻、收養、監護等的合法關系,不受合同法支配。 與其它三部現存合同法相比,合同法草案規定的適用范圍有了適當擴大。
2. The Basic Principles
The basic principles of the Contract Law provided for the Draft Contract Law are as follow: First, equality and voluntariness. With equal legal status, the parties to contract enjoy according to law the right to conclude a contract voluntarily. No party may impose his own will on another and no unit or individual may illegally interfere. Secondly, fairness, honesty and good faith. Both parties shall observe the principle of fairness in determining their rights and obligations and shall comply with the principles of honesty and good faith in exercising their right and performing their duties. Thirdly, observation of law. In concluding and performing a contract, the parties shall observe the law and administrative regulations, respect social ethics and they may not disrupt public and economic order or impair public interests.
基本原則
合同法草案對合同法基本原則的規定是:第一,平等、自愿。合同當事人的法律地位平等,依法享有自愿訂立合同的權利,一方不得將自己的意志 強加給另一方,任何單位和個人不得非法干預。第二,公平、誠實、守信。當事人應當遵循公平的原則確定雙方的權利和義務,在行使權利、履行義務 時,應當遵循誠實、守信的原則。第三,守法。當事人訂立、履行合同,應 當遵守法律、行政法規,尊重社會公德,不得擾亂社會經濟秩序,損害公眾 利益。
The principle of voluntariness embodies the fundamental characteristics of civil activities and is therefore the unique principle of civil legal relationship that distinguishes it from administrative and criminal legal relationship, and it is also the objective requirement for developing the socialist market economy. The parties involved have the right to conclude a contract according to their own will. However, they shall exercise this right in accordance with law. Both the contents of the contract and the procedures for concluding it shall be in conformity with the law and administrative regulation. The contract concluded in violation of the compulsory provisions of the law and administrative regulations is invalid. If the law or administrative regulations provide that a contract shall take effect upon going through such procedures as approval or registration, such provisions shall be observed. Where a mandatory task is assigned or a procurement order is given by the State in light of need, the legal persons or other organizations concerned shall conclude a contract on the basis of the rights and obligations provided for in relevant laws and regulations.
自愿原則體現了民事活動的基本特征,是民事法律關系區別于行政法律關系、刑事法律關系特有的原則,也是發展社會主義市場經濟的客觀要求。 當事人有權按照自己的意愿訂立合同,但是,應當依法行使這項權利,包括 訂立合同的內容和程序都應當遵守法律、行政法規。違反法律、行政法規的 強制性規定的合同無效。法律、行政法規規定應當辦理批準、登記等手續生 效的,依照其規定。國家根據需要下達指令性任務或者國家訂貨任務的,有 關法人、其它組織之間應當依照有關法律、行政法規規定的權利和義務訂立 合同。