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1、AMERICAN CERTIFICATION INSTITUTE,2004 1LeRoy H.GrawEdD,DBA,CISCMChinas Contract Law第一页，共二十二页。AMERICAN CERTIFICATION INSTITUTE,2004 2Knowledge/Skill/AbilityBe able to write a contract prepared under Chinas Contract Law when required.第二页，共二十二页。AMERICAN CERTIFICATION INSTITUTE,2004 3IntroductionContrac
2、t Law of the Peoples Republic of China(PRC)was promulgated on National Day,October 1st,1999 It replaced a host of existing laws,including:1.Economic Contract Law of the PRC(ECL)2.Law of the PRC on Economic Contracts involving Foreign Interests(FECL)3.Law of the PRC on Technology ContractsContains 23
3、 Chapter and 428 Articles第三页，共二十二页。AMERICAN CERTIFICATION INSTITUTE,2004 4BackgroundThe new PRC Contract Law mirrors provisions of the U.N.Convention on the International Sale of Goods(CISG),some ideas of the Uniform Commercial Code,and some modern trends in Western law.It also removes punitive prov
4、isions of prior law,provides for remedies for breach,contemplates specific performance,and frowns on penalty clauses not related to actual losses.第四页，共二十二页。AMERICAN CERTIFICATION INSTITUTE,2004 5Definition of a ContractArticle 2 of the new Contract Law provides that a contract in this Law refers to
5、an agreement establishing,modifying and terminating the civil rights and obligations between subjects of equal footing.A contract is an agreement between the subjects,no matter they are natural persons,legal persons or other organizations.A contract is an agreement of civil relationship being conclu
6、ded and signed by and between specific civil subjects,that is,by and between two or more natural persons,by and between natural person(s)and legal person(s)or other organization(s),by and between legal persons,by and between legal person(s)and other organization(s).第五页，共二十二页。AMERICAN CERTIFICATION I
7、NSTITUTE,2004 6第六页，共二十二页。AMERICAN CERTIFICATION INSTITUTE,2004 7Scope of the New LawExcluded:Contracts involving personal status relationship,such as on matrimony,adoption,guardianship,etc.,under the provisions of other laws.Contracts for guarantee or for insurance.Other contracts not covered in the
8、“Specific Provisions.All contracts must follow the“General Provisions of the new contract law,even though there are separate laws covering these contract types.第七页，共二十二页。AMERICAN CERTIFICATION INSTITUTE,2004 8Scope of the New LawIncluded:Other than those excluded,domestic contracts and foreign contr
9、acts which involve foreign interests.15 specifically-listed kinds of contracts found in the Specific Provisions.These include:contracts for salescontracts for supply and use of electricity,water,gas or heatingcontracts for donationcontracts for loanscontracts for leasecontracts for financial leaseco
10、ntracts for workcontracts for construction projectscontracts for transportationcontracts for technologycontracts for storagecontracts for warehousingcontracts for commissioncontracts for brokeragecontracts for intermediation.第八页，共二十二页。AMERICAN CERTIFICATION INSTITUTE,2004 9What is Included?Article 1
11、2 The content of a contract is determined by the parties and generally includes the following clauses:(1)designations or names and addresses of the parties;(2)the targeted matter;(3)quantity(4)quality;(5)price or remuneration;(6)time,place and mode of fulfillment;(7)liability for breach of contract;
12、and(8)dispute settlement.第九页，共二十二页。AMERICAN CERTIFICATION INSTITUTE,2004 10Specific PointsOral contracts allowed.Binding contracts may be written or oral,unless limited by agreement or law.Similar to the CISG.Unlike the UCC,which limits oral contracts to$5,000.第十页，共二十二页。AMERICAN CERTIFICATION INSTIT
13、UTE,2004 11Specific PointsRecognition of modern transaction modes.Electronically transmitted communications(telegram,telex,facsimile,electronic data interchange and e-mail)constitute writings for purposes of contract law.第十一页，共二十二页。AMERICAN CERTIFICATION INSTITUTE,2004 12Specific PointsGood faith in
14、 negotiating and performing.A party who,in the negotiating process,deliberately conceals important facts or pretends to conclude a contract may be liable for causing loss to the other party.Good faith is required in the performance of contractual rights and duties.第十二页，共二十二页。AMERICAN CERTIFICATION I
15、NSTITUTE,2004 13Specific PointsGrounds for revocation/modification.Where serious misunderstanding lies at the base of the contract,or where the contract is manifestly unfair at the time it was made,a party may seek modification or revocation.第十三页，共二十二页。AMERICAN CERTIFICATION INSTITUTE,2004 14Specifi
16、c PointsBusiness secrets protected.A party who learns a business secret of the other in the contracting process risks damages for disclosing or unfairly using the information.第十四页，共二十二页。AMERICAN CERTIFICATION INSTITUTE,2004 15Specific PointsAdhesion and Standard Form Contracts.Akin to consumer prote
17、ction measures in U.S.law,the new law invalidates clauses that purport to immunize a party from,inter alia,causing personal injury or property damage to the other.第十五页，共二十二页。AMERICAN CERTIFICATION INSTITUTE,2004 16Specific PointsRules of Interpretation.In case of disputes,standardized contracts will
18、 be interpreted according to general understanding,and ambiguities shall be resolved in favor of the non-drafting party.Where international contracts specify,for example,that both the Chinese and English versions will have equal validity,disparate meanings shall be interpreted according to the purpo
19、se of the contract.第十六页，共二十二页。AMERICAN CERTIFICATION INSTITUTE,2004 17Specific PointsOffer and Acceptance.In contrast to prior law,fairly detailed rules now govern offer and acceptance,formation and revocation of offers.For example,an acceptance is generally effective when notice reaches the offeror
20、.第十七页，共二十二页。AMERICAN CERTIFICATION INSTITUTE,2004 18Specific PointsAcceptance that varies the terms of the offer.An offeree who substantially alters the contents of the offer will not be permitted to bind the offeree.第十八页，共二十二页。AMERICAN CERTIFICATION INSTITUTE,2004 19Additional ProvisionsThe new law
21、:encourages contracting parties to have recourse to informal dispute resolution.favors arbitration but also affirms access to courts.第十九页，共二十二页。AMERICAN CERTIFICATION INSTITUTE,2004 20Summary/ConclusionsThe new Contract Law of China is appropriate for the“New World Economy and Chinas entrance into t
22、he WTO.The new Contract Law is generally consistent with the UCC and CISG and may even be preferred by foreign firms doing business in China.The new Contract Law is relatively straightforward and uncomplicated.It is a definite improvement over the old patchwork of 3 separate laws which governed contracts previously.第二十页，共二十二页。AMERICAN CERTIFICATION INSTITUTE,2004 21第二十一页，共二十二页。内容(nirng)总结LeRoy H.Graw。Knowledge/Skill/Ability。Grounds for revocation/modification.。Summary/Conclusions第二十二页，共二十二页。