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hg7381com Heavy! Authoritative interpretation of 40 key provisions in each chapter of the General Principles of the Civil Law

Heavy! Authoritative interpretation of 40 key provisions in each chapter of the General Principles of the Civil Law

Source of information: Time: 2020-02-21 02:44:52

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Source: Law Press
The General Principles of the Civil Law of the People's Republic of China (hereinafter referred to as the General Principles of the Civil Law) was adopted by the Fifth Session of the Twelfth National People's Congress of the People's Republic of China on March 15, 2017, and will be implemented as of October 1, 2017. The General Principles of the Civil Law is the general code of the Civil Code, which stipulates the basic principles and general provisions of civil activities and plays a leading role in the Civil Code. It is divided into basic regulations, natural persons, legal persons, unincorporated organizations, civil rights, civil legal acts, agency, civil liability, limitation of litigation, period calculations and supplementary regulations, Chapter 11, 206.
Since the official version of the General Principles of Civil Law was promulgated, a large number of interpretations of the General Principles of Civil Law and even more complicated interpretations of various laws have emerged, and their significance is mostly to provide academic explanations. On this occasion, adhering to the purpose of disseminating the law, based on the original intention of disseminating the interpretation of experts from authoritative legislative bodies, facing the law-applicable people, and striving for a concise interpretation style, by revealing the normative objects and problems, combing them point by point, we pushed forward for everyone An authoritative interpretation of key provisions in each chapter of the General Principles of Civil Law. The manuscript comes from the book "Interpretation of the General Principles of the Civil Law of the People's Republic of China" (listed by the Law Press on April 18, 2017). This book is edited by Comrade Li Shishi, Director of the Legal Work Committee of the Standing Committee of the National People's Congress, and Deputy Director Comrade Zhang Rongshun as Deputy Editor. .
As a standard version of the interpretation of the General Principles of Civil Law, the 40 key articles extracted in this article have a total word count of nearly 100,000 words. In view of the limitation of WeChat tweet bytes, we have adopted the method of example exhibition and click on the external link to view it one by one (click to view the full text of this article >>> button to view)
Authoritative interpretation of key provisions in chapters of the General Principles of the Civil Law
Organizer 丨 Tao Yuxia Planning Editor
one
Basic
Section 1 Legislative Purpose and Basis
Article 1 [Legislative Purpose and Basis]
[Article] In order to protect the legitimate rights and interests of civil subjects, adjust civil relations, maintain social and economic order, meet the requirements of the development of socialism with Chinese characteristics, promote the core values of socialism, and formulate this law in accordance with the Constitution.
[Interpretation] This article is about the legislative purpose and basis of civil law.
The purpose of legislation is to establish the fundamental goals and purposes of laws. Article 1 of the law stipulates the purpose and purpose of legislation, which is in line with the practice of China's legislation. For example, the legislative purpose stipulated in Article 1 of the Contract Law is to protect the legitimate rights and interests of the parties to the contract, maintain social and economic order, and promote socialist modernization; the legislative purpose prescribed in Article 1 of the Property Law is to maintain the basic economic system of the country and maintain the socialist market economic order. , To clarify the ownership of the material, to play the utility of the material, to protect the property rights of the right holder; the legislative purpose stipulated in Article 1 of the Tort Liability Law is to protect the legitimate rights and interests of the civil subject, clarify the liability of the tort, prevent and punish the tort, and promote social harmony and stability .
Regarding the legislative purpose of civil law, there are different views in the legislative process. Some people believe that the only purpose of the civil law is to protect the civil rights and interests of civil subjects. Some people think that it includes adjusting civil relations and maintaining social order. Some people think that it should also include safeguarding human freedom and dignity, and promoting Well-being of the people, etc. The legislative purposes set out in Article 1 of the General Principles of the Civil Law include protecting the legitimate civil rights and interests of citizens and legal persons, correctly adjusting civil relations, and meeting the needs of the development of socialist modernization. Based on the opinions of various parties, this article defines the legislative purpose in five aspects based on the legislative purpose stipulated in the general rules of the civil law:
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Article 2 [Adjustment Range]
[Article] The civil law regulates the personal and property relations between natural persons, legal persons and unincorporated organizations of equal subjects.
[Interpretation] This article is about the scope of civil law adjustment.
The scope of legal adjustment is the type of social relationship regulated by law. The legal system of a country is always composed of different legal departments, and different legal departments regulate different social relations. The division of labor and cooperation between legal departments forms an organic and unified legal system. The same is true of the socialist legal system with Chinese characteristics, which is composed of different legal departments such as the Constitution and constitution-related laws, civil law, administrative law, economic law, social law, and criminal law.
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Article 3 [civil rights and interests are protected by law]
[Article] The personal rights, property rights, and other legal rights and interests of civil subjects are protected by law, and no organization or individual may infringe.
[Interpretation] This article is about the protection of civil rights and other legal rights by law.
The protection of civil rights and other legal rights is the basic spirit of civil law. The requirement that the civil rights of civil subjects and other legitimate rights and interests be protected by law is stipulated in many laws in China. As stipulated in Article 13 of the Constitution, citizens 'legitimate private property is inviolable, and the state protects citizens' private property rights and inheritance rights in accordance with the law.
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Section II Basic Principles
Article 4 [Equality Principle]
[Article] The legal status of civil subjects in civil activities is all equal.
[Interpretation] This article is about the principle of equality.
The principle of equality refers to the civil subject, whether a legal person, a natural person or an unincorporated organization, regardless of the size of the legal person, the economic strength or not, whether the natural person is male, female, old, young, poor, rich, and whatever business the unincorporated organization conducts. When engaging in civil activities, they are equal to each other in legal status, and their legitimate rights and interests are protected equally by law. The principle of equality is a unique principle that distinguishes civil legal relations from administrative legal relations, and is also an objective requirement for the development of a socialist market economy.
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Article 5 [Voluntary Principle]
[Article] Civil subjects engaging in civil activities shall follow the principle of voluntariness and establish, change, and terminate civil legal relations according to their own wishes.
[Interpretation] This article is a provision on the voluntary principle.
The principle of voluntariness, also known as the principle of autonomy of the will, means that civil subjects have the right to engage in civil activities voluntarily according to their own wishes, to autonomously determine the content of civil legal relations and their establishment, change, and termination according to their own will, and to consciously bear the corresponding legal consequences. The voluntary principle embodies the most basic characteristics of civil activities.
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Article 6 [Fairness Principle]
[Articles] Civil subjects engaging in civil activities shall follow the principle of fairness and reasonably determine the rights and obligations of all parties.
[Interpretation] This article is about the principle of fairness.
The principle of fairness requires civil subjects to adhere to the concept of fairness, determine the rights and obligations of all parties fairly, fairly, and reasonably, and assume corresponding civil liabilities in accordance with the law. The principle of fairness reflects the basic value of civil law in promoting social fairness and justice, and plays an important role in regulating the behavior of civil subjects.
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Article 7 [Principle of Good Faith]
[Articles] Civil subjects engaging in civil activities shall follow the principle of good faith, uphold honesty, and abide by their commitments.
[Interpretation] This article is about the principle of good faith, that is, the principle of good faith.
The principle of good faith requires that all civil subjects should be honest, good faith, and keep their promises when engaging in any civil activities, including exercising civil rights, performing civil obligations, and bearing civil liabilities. The principle of good faith requires civil subjects to speak honestly, respect their promises, and keep promises in the process of exercising their rights and performing their obligations. This is of great significance for building a trustworthy society, regulating economic order, and leading social trends.
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Article 8 [Legal compliance and public order and good customs]
[Article] Civil subjects engaging in civil activities shall not violate the law or violate public order and customs.
[Interpretation] This article is a provision on the principles of law compliance and public order and good customs.
Public order and good customs refer to public order and good customs. The principle of observance of laws and public order and good customs requires that natural persons, legal persons and unincorporated organizations must not violate the mandatory provisions of various laws and violate public order and good customs when engaging in civil activities.
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Article 9 [Green Principle]
[Article] Civil subjects engaging in civil activities shall be conducive to saving resources and protecting the ecological environment.
[Interpretation] This article is about the green principle.
The requirements for saving resources and protecting the ecological environment are stipulated in our Constitution and many laws. Such as:
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two
Since
Section 1 Capacity for Civil Rights and Capacity for Civil Conduct
Article 16 [Protection of Fetal Interests]
[Article] In case of protection of fetal interests such as inheritance of inheritance, acceptance of gifts, the fetus is deemed to have capacity for civil rights. However, if the fetus is born dead, its capacity for civil rights does not exist from the beginning.
[Interpretation] This article is about the protection of fetal interests.
A natural person ’s capacity for civil rights begins at birth, and the fetus has not yet been separated from the mother ’s body. It is not an independent natural person and cannot be protected in accordance with the general provisions of civil rights capacity. The law needs to make special provisions for the protection of fetal interests.
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Article 19 [Minors with limited civil capacity]
[Article] Minors over eight years of age are persons with limited capacity for civil conduct, and the implementation of civil legal acts shall be represented by their legal agents or approved and ratified by their legal agents. And intellectual civil law acts.
[Interpretation] This article is a regulation on the restriction of minors' capacity for civil conduct.
This article lowers the minimum age limit for minors who have limited civil capacity from the age of ten to eight as stipulated in the General Principles of Civil Law. During the drafting of this article, it attracted widespread social attention.
The first draft of the general draft of the civil law submitted to the Standing Committee of the National People's Congress for review considers the minimum age of minors who limit civil capacity to be six. Li Shishi, director of the Legal Work Committee of the Standing Committee of the National People's Congress, proposed in the explanation of the first draft of the General Principles of the Civil Law that the minimum age limit for persons with limited civil capacity stipulated in the General Principles of the Civil Law be reduced from "ten years of age" to "six years of age". Yes:
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Section 2 Guardianship
Article 27 [Guardian of a minor]
[Article] Parents are the guardians of minor children.
If the minor's parents have died or have no guardianship, the following persons with guardianship can serve as guardians in order:
(1) grandparents and grandparents;
(2) brothers and sisters;
(3) Other individuals or organizations willing to serve as guardians, but with the consent of the residents 'committee, villagers' committee or civil affairs department where the minors live.
[Interpretation] This article is about the guardian of minors.
Paragraph 1 of this article provides that the parents are the guardians of the minor. Parents have statutory obligations to raise, educate and protect minor children. They have the closest relationship with minor children and are vital to the healthy growth of minors. Based on this, parents become unconditional legal guardians of minors. Only in the case of the death of the parents or the incapability of guardianship can other individuals or relevant organizations serve as guardians.
Paragraph 2 of this article stipulates that individuals or organizations other than parents serve as guardians. Paragraph 2 is improved on the basis of the relevant provisions of the General Principles of the Civil Law, mainly in two aspects: one is to require persons with guardianship other than parents to act as guardians in "sequence"; Provisions.
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Article 30 [Agreement of Guardian]
[Article] A person who is qualified for guardianship according to law may agree to determine a guardian. The agreement determines that the guardian should respect the true will of the guardian.
[Interpretation] This article is about the agreement to determine the guardian.
Agreement guardianship is one of the ways to determine guardians, and it has a certain basis of judicial practice. Article 15 of the Opinions of the Supreme People's Court on Several Issues concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China (Trial) stipulates: "Any person who is qualified for guardianship shall determine the guardian by agreement, and the guardian determined by the agreement shall bear the responsibility of the guardian. Guardianship responsibility. "This article provides for the agreement on the guardianship system on the basis of absorbing judicial practical experience. Articles 27 and 28 of the General Principles of the Civil Law stipulate the scope of persons with guardianship qualifications for minors, adults without civil capacity and adults with limited civil capacity, respectively. Under the premise that the law has strict restrictions on persons with guardianship qualifications, allowing agreement between the persons with guardianship qualifications to determine the guardian will not harm the legal rights of the guardian.
Articles 27 and 28 of this law stipulate the order of serving as guardians, the main purpose of which is to prevent guardians with guardianship qualifications from shirk their responsibilities, resulting in the absence of guardians. Agreement on guardianship may not determine the guardian in the order prescribed in Articles 27 and 28. Those with qualifications for guardianship may choose the appropriate guardian after full negotiation based on their living contact with the guardian, economic conditions, available educational conditions, or living care measures, etc., on the basis of respecting the wishes of the guardian. This is not only a respect for the common will of those who have the qualifications for guardianship, but also conducive to protecting the legitimate rights and interests of the guardian. The legal recognition of the agreement guardianship system is not only a response to practical needs, but also conducive to further standardizing the agreement guardianship system.
According to this article, agreement guardianship has the following characteristics:
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Article 31 [Guardianship Dispute Resolution Procedure]
[Article] If there is a dispute over the determination of a guardian, the guardian appointed by the resident committee, village committee or civil affairs department of the place where the guardian lives, if the parties concerned are not satisfied with the designation, they can apply to the people's court for the designation of the guardian; The court applied for the appointment of a guardian.
Residents 'committees, villagers' committees, civil affairs departments, or people's courts shall respect the true wishes of their guardians, and designate guardians among those who have legal guardianship in accordance with the principles that are most beneficial to their guardians.
Before the guardian's personal rights, property rights, and other legitimate rights and interests are left unprotected before the guardian is appointed in accordance with the provisions of the first paragraph of this article, the residents 'committee, villagers' committee, relevant organizations prescribed by law, or the civil affairs department shall be the guardian's domicile Temporary guardian.
After the guardian is appointed, it shall not be changed without authorization; if the guardian is changed without authorization, the responsibility of the designated guardian shall not be relieved.
[Interpretation] This article is a provision on guardianship dispute resolution procedures.
There are 4 paragraphs in this article. Paragraph 1 provides two ways to resolve the dispute over the determination of a guardian:
First, the guardian shall be appointed by the residents' committee, village committee or civil affairs department where the guardian lives. The designation has no final effect. If the parties concerned are not satisfied with the designation, they may apply to the court, and the court will appoint a guardian. The court's designation has final effect, and the designated guardian shall perform guardianship duties and shall not shirk.
Second, the parties concerned may apply directly to the court without the appointment of a residents committee, village committee or civil affairs department, and the court may appoint a guardian. The "controversial determination of the guardian" stipulated in this paragraph includes both the case of competing for guardianship and the case of refusal to act as guardian, including the following types of situations:
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Article 34 [Guardianship duties]
[Article] The responsibility of the guardian is to act on behalf of the guardian in the conduct of civil legal acts, protect the guardian's personal rights, property rights, and other legal rights.
The rights of guardians to perform guardianship duties in accordance with law are protected by law.
A guardian who fails to perform guardianship duties or infringes on the legal rights and interests of the guardian shall bear legal responsibility.
[Interpretation] This article is about the content of guardianship duties.
Regarding the nature of guardianship, there are academic disputes, mainly including the "rights", "duties or duties", "rights and obligations said." This article focuses on guardianship duties, while protecting rights arising from the performance of guardianship duties.
Paragraph 1 of this article sets out the duties of a guardian. It is an important purpose of the guardianship system to make up for the inadequate civil capacity of the guardian. The guardian often cannot independently perform civil legal acts, which needs to be implemented by the guardian. This paragraph emphasizes "the conduct of civil legal acts on behalf of the guardian" from the guardianship duties. The guardian's duties to protect the guardian's personal rights, property rights, and other legal rights include:
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Three
Legal person
Section I General Provisions
Article 58 [Legal principles and conditions for the establishment of legal persons]
[Article] A legal person shall be established in accordance with the law.
A legal person shall have its own name, organization, domicile, property or funds.
The specific conditions and procedures for the establishment of a legal person shall be in accordance with the provisions of laws and administrative regulations.
If a legal person is to be established, the relevant laws and administrative regulations require approval from the relevant authorities, in accordance with its provisions.
[Interpretation] This article is about the legal principles for establishing a legal person and the conditions for establishing a legal person.
Paragraph 1 of this article stipulates the legal principles for the establishment of legal persons, and paragraphs 2 and 3 provide the conditions and procedures for the establishment of legal persons.
The legal principles for the establishment of legal persons stipulated in the General Principles of the Civil Law are similar to the legal principles for real rights stipulated in the Property Rights Law. From the perspective of overseas regulations:
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Section 2 For-profit legal person
Article 76 [Definition and Type of For-profit Legal Person]
[Article] A legal person established for the purpose of obtaining profit and distributing it to shareholders and other investors is a for-profit legal person.
For-profit legal persons include limited liability companies, joint stock limited companies, and other corporate legal persons.
[Interpretation] This article is about the definition and type of for-profit legal person.
The important feature that distinguishes a for-profit legal person from a non-profit legal person is not "to obtain profit", but to "distribute profit to the investor". Whether or not to engage in business activities and obtain profits is not directly related to the purpose for which the legal person is established, nor does it affect the classification of for-profit legal persons and non-profit legal persons. For example, the foundation legal person is a non-profit legal person, but in order to maintain the value of the property or increase its value, it will also use the management funds for business activities; some temples will also charge tickets. The key to distinguishing between a for-profit legal person and a non-profit legal person is whether the profit distribution belongs to the investor. If the profit belongs to a legal person and is used to achieve the purpose of the legal person, it is not a for-profit legal person; if the profit distribution is given to the investor, it is a for-profit legal person.
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Section III Non-profit Legal Person
Article 87 [Definition and Type of Non-profit Legal Person]
[Article] A legal person established for the purpose of public welfare or other non-profit purposes, and does not distribute the profit obtained to the investor, founder or member, is a non-profit legal person.
Non-profit legal persons include public institutions, social organizations, foundations, social service agencies, etc.
[Interpretation] This article is about the definition and type of non-profit legal person.
A non-profit legal person is a symmetry of "for-profit legal person", which refers to a legal person that is established for public benefit or other non-profit purposes and does not distribute profits to its members or founders. The legal concept of "non-profit legal person" is the first in China's civil law. Before that, the legal concept with the same meaning as "non-profit legal person" and the closest concept was "non-profit legal person", and "non-profit legal person" as a The concept of law first appeared in Article 2 of the Foundation Management Regulations. The article states: "The foundations referred to in these regulations refer to non-profit legal persons established in accordance with the provisions of these regulations by using property donated by natural persons, legal persons or other organizations for the purpose of engaging in public welfare undertakings." And "non-profit legal persons" Legal concepts with similar meanings include "non-profit organizations", "non-profit social organizations", "social organizations engaged in non-profit social service activities," and so on. For example, Article 2 (1) of the Regulations on the Administration of Registration of Social Organizations states: "Social organizations referred to in this Regulation refer to non-profit social organizations formed voluntarily by Chinese citizens to carry out their activities in accordance with their constitutions in order to realize the common wishes of members. Article 2 of the "Interim Regulations on the Registration and Management of Private Non-Business Units" states: "The private non-business units referred to in these Regulations refer to enterprises, institutions, social groups, and other social forces, as well as individual citizens using non-state assets to conduct The social organization of for-profit social service activities. "The" non-profit non-profit organization accounting system "developed by the Ministry of Finance directly uses the concept of" non-governmental non-profit organization "in the name of the regulations to refer to social groups, foundations and private organizations. Various non-governmental non-profit organizations including non-enterprise units.
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Section 4 Special Legal Person
Article 99 [Rural Collective Economic Organization Legal Person]
[Article] In order to obtain the legal personality of a rural collective economic organization according to law.
Where laws and administrative regulations have provisions on rural collective economic organizations, such provisions shall be followed.
[Interpretation] This article is a provision on the legal person of a rural collective economic organization.
Rural collective economic organization is a form of economic organization with Chinese characteristics. It was established in order to adapt to China's rural collective ownership economy. It has been more than sixty years since the establishment of the rural collective economic organization system. From the junior and senior societies in 1950 to the people's communes, production brigades, and production teams, it has been reformed since the 1980s. In recent years, the Constitution and the central document have collectively been called rural collective economic organizations. Rural collective economic organizations implemented the integration of villages and communities before the 1980s, and separated villages and communities in the mid-to-late 1980s. Later, the central government allowed localities to adapt to local conditions. Some places were called village committees, and some places added the village economic union brand in addition to the village committees. Therefore, most of the rural collective economic organizations now evolved from "three-level ownership, team-based" during the people's commune period, and are cooperative economic organizations based on collective land ownership. Collective economic organizations shall, in accordance with the ownership of collective property rights, operate and manage the assets collectively owned by their collective members in accordance with the law. With the acceleration of the process of urban integration, some towns, villages, and groups have quantified collective operating assets in the form of shares or shares to collective members on the basis of clear ownership of property rights, actively developed farmers' share cooperation, and established share economic cooperatives New collective economic organization.
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Article 101 [Mass-level self-government organization legal person]
[Article] Residents 'committees and villagers' committees have the qualifications of grass-roots mass autonomous organizations as legal persons and can engage in civil activities required to perform their functions.
Where no village collective economic organization is established, the villagers' committee may perform the functions of the village collective economic organization on behalf of the law.
[Interpretation] This article is a provision on grassroots mass autonomous organizations as legal persons.
Villagers 'committees and residents' committees are grassroots mass autonomous organizations in China. The Organic Law of the Villagers 'Committee and the Organic Law of the Urban Residents' Committee make it clear. The Organic Law of the Villagers 'Committee stipulates that the villagers' committee is a grassroots mass autonomous organization for self-management, self-education, and self-service of the villagers. It implements democratic elections, democratic decision-making, democratic management, and democratic supervision. The villagers 'committee handles the village's public affairs and public welfare undertakings, mediates civil disputes, assists in maintaining public order, and reflects the villagers' opinions, requirements, and suggestions to the people's government. At the same time, according to the provisions of laws such as the Property Right Law, in villages without a rural collective economic organization, the villager committee can also perform the functions of a rural collective economic organization. The Organic Law of the Urban Residents' Committee stipulates that the residents' committee is a grassroots mass autonomous organization for residents' self-management, self-education and self-service. Handle the public affairs and public welfare of the residents in the area where they live; mediate civil disputes; assist in maintaining public order; assist the people's government or its dispatched agencies to do public health, family planning, preferential treatment, and youth education related to the interests of residents ; Reflect the people's government or its dispatched agencies' opinions, demands, and suggestions to the people's government. The Organic Law of the Urban Residents Committee also stipulates that the residents' committee shall carry out community service activities for the convenience of the people and may establish related service undertakings. The residents' committee manages the property of the residents' committee, and no department or unit may infringe the property ownership of the residents' committee. It can be said that both the villagers 'committee and the residents' committee have clear legal status, but so far, there is no law that clearly gives the "two committees" civil subject status. During the legislative process, many opinions suggested that villagers 'committees and residents' committees did not have a clear status of civil subjects, which severely restricted their provision of public welfare services to the community. It is suggested that the general provisions of the civil law clearly state that they have the status of legal persons. According to research,
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Wanton
Non- 丨 Law 丨 People 丨 Group 丨 Weaving
Article 102 [Definition and scope of unincorporated organizations]
[Article] An unincorporated organization is an organization that does not have legal personality, but can engage in civil activities in its own name according to law.
Unincorporated organizations include sole proprietorships, partnerships, and professional service organizations without legal personality.
[Interpretation] This article is about the definition and scope of unincorporated organizations.
Paragraph 1 of this article provides the definition of an unincorporated organization, that is, an unincorporated organization is an organization that is incapable of being a person and can engage in civil activities in its own name. From its definition, the characteristics of unincorporated organizations are:
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Article 103 [Procedure for Establishment of Unincorporated Organization]
[Article] Unincorporated organizations shall be registered in accordance with the provisions of the law.
Where an unincorporated organization is established, laws and administrative regulations require approval by the relevant authorities, in accordance with its provisions.
[Interpretation] This article is about the procedures for the establishment of unincorporated organizations.
Paragraph 1 of this article provides for registration procedures for the establishment of unincorporated organizations. Regarding whether the establishment of unincorporated organizations should always be registered, there are different views in the process of formulating general rules of civil law. Some opinions suggest that it is not necessary to require all unincorporated organizations to register and establish, especially for some loose organizations, the registration is too strict. Some comments suggest:
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Wu
Civil affairs 丨 rights 丨 benefits
Article 109 [Personal freedom and personal dignity are protected by law]
[Article] Natural persons' personal freedom and personal dignity are protected by law.
[Interpretation] This article is a provision on the personal freedom and personal dignity of natural persons to be protected by law.
Personal freedom is the basic guarantee for natural persons to participate in various social activities, participate in various social relationships, and exercise other personal and property rights. It is the prerequisite and basis for natural persons to exercise all other rights.
Personal dignity is an important part of personal rights and involves:
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Article 110 [Civil Subject Personality Right]
[Article] For the natural person to enjoy the right to life, body, health, name, portrait, reputation, honor, privacy, marriage autonomy and other rights.
Legal persons and unincorporated organizations enjoy the rights of name, reputation, and honor.
[Interpretation] This article is about the personal right of a civil subject.
Personality right is the right that exists in the personality of a civil subject, and is the right that a civil subject enjoys in its specific personality interests.
I. Personality rights of natural persons
Paragraph 1 of this article provides for the right to personality of a natural person. According to this paragraph, natural persons mainly enjoy the following personality rights:
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Article 111 [Personal information is protected by law]
[Article] The personal information of natural persons is protected by law. Any organization or individual who needs to obtain the personal information of others shall obtain and ensure the security of the information in accordance with law, shall not illegally collect, use, process and transmit the personal information of others, and shall not illegally trade, provide or disclose the personal information of others.
[Interpretation] This article is about the protection of personal information of natural persons by law.
During the legislative process, some members of the Standing Committee, departments, law teaching and research institutions, and the public have suggested that in practice, some organizations and individuals illegally obtain personal information of citizens, sell or illegally provide personal information of citizens to others, and the social harm is serious. Emphasize the protection of personal information. According to research, the right to personal information is an important right that citizens enjoy in the modern information society. The clear protection of personal information is of practical significance to protect the personal dignity of citizens, protect citizens from illegal intrusion, and maintain normal social order. According to this, the General Principles of Civil Law has a separate provision in the chapter on civil rights, which clearly stipulates that the personal information of natural persons is protected by law and the obligations of other civil subjects to protect personal information of natural persons.
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Article 113 [Equal Protection of Property Rights]
[Article] The property rights of civil subjects are equally protected by law.
[Interpretation] This article is about the equal protection of the property rights of civil subjects by law.
The equal protection of the property rights of civil subjects by law is determined by the nature of social relations adjusted by civil law. Article 2 of this law stipulates that the civil law regulates the personal and property relations between natural persons, legal persons and unincorporated organizations of equal subjects. Article 4 stipulates that the legal status of civil subjects in civil activities shall be equal. Equality collectively reflects the essential attributes of civil legal relations and is the main sign that distinguishes civil legal relations from other legal relations. This article, on the basis of the principle of equality stipulated in this Law, provides for a separate provision stipulating that the property rights of civil subjects shall be protected equally by law.
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Article 127 [Protection of Data and Network Virtual Property]
[Articles] Where the law has provisions on the protection of data and network virtual property, such provisions shall be followed.
[Interpretation] This article is about the protection of data and network virtual property.
During the legislative process, there is a big dispute as to whether and how the general provisions of the civil law stipulate data and network virtual property. Some opinions hold that data and network virtual property are one of the objects of civil rights. However, data and network virtual property are emerging issues, and their conceptual scope, scope of protection, right attributes, rights and obligations are more complicated. There are major controversies over these issues in theory and practice. The protection of virtual property is still in the exploratory stage. The General Principles of Civil Law do not specifically stipulate the subject of civil rights, and data and network virtual property can be incorporated into various existing civil rights for protection. Some opinions suggest that in order to adapt to the new situation of the rapid development of the information society and the Internet, and to reflect the epochal nature of the general principles of civil law, the general principles of civil law need to make provisions for new types of civil rights objects such as data and network virtual property. This will help resolve practical disputes and provide guarantees for the future development of the social Internet. However, in view of the complexity of data and network virtual property, it is limited to the chapter structure of the General Principles of Civil Law, how to define data and network virtual property, and how to specify the right attributes and content of data and network virtual property should be regulated by special laws.
After research, this article finally stipulates in principle the protection of data and network virtual property, that is:
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land
Civil affairs 丨 law 丨 law 丨 conduct 丨
Section I General Provisions
Article 133 [Definition of Civil Legal Act]
[Article] A civil legal act is an act in which a civil subject establishes, alters, or terminates a civil legal relationship through an expression of intention.
[Interpretation] This article is about the definition of civil legal acts.
To understand civil legal acts, we must first understand the concept of legal acts. The concept of legal action is derived from the German Civil Code. Since then, this concept has had a profound impact on the civil law legislation of other countries and regions. The civil codes of Japan, Italy, the Netherlands, Russia and other countries and the "civil law" of Taiwan in China have basically adopted this concept as a kind of Important civil systems are required. Traditional civil law theory also uses the concept of legal acts. The theoretical meaning of legal behavior is usually expressed as: the intention expression of the intention made by the civil subject to a certain legal effect. The General Principles of Civil Law formulated in 1986 did not adopt the expression of legal acts, but adopted the concepts of civil legal acts and civil acts. According to Chapter 4 of the General Principles of Civil Law, a civil legal act is a legal act by a citizen or legal person to establish, change, or terminate civil rights and obligations. Compared with the traditional concept of legal acts, the "civil legal acts" stipulated in the general principles of civil law have two characteristics:
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Section 2 meaning expression
Article 137 [Time to enter into force with the intention of a counterparty]
[Article] The expression of meaning made in a dialogue mode takes effect when the counterparty knows its content.
In a non-conversational manner, the meaning of the data message is adopted. If the opposite person specifies a specific system to receive the data message, the data message takes effect when entering the specific system; if no specific system is specified, the opposite person knows or should know the data message entry Its system takes effect. If the parties have otherwise agreed on the effective time of meaning expression in the form of data message, such agreement shall prevail.
[Interpretation] This article is about the effective time of the expression of the meaning of the opposite party.
The expression of meaning refers to the behavior of the actor to express his inner meaning to the outside in a certain way in order to produce a certain civil law effect. The "meaning" in the meaning expression refers to the inner intention to establish, change, and terminate the civil legal relationship, and the "representation" refers to the act of expressing the inner meaning to the appropriate object in an appropriate manner. The meaning expression has the following characteristics:
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第三节民事法律行为的效力
第143条【民事法律行为有效要件】
【条文】具备下列条件的民事法律行为有效:
(一)行为人具有相应的民事行为能力;
(二)意思表示真实;
(三)不违反法律、行政法规的强制性规定,不违背公序良俗。
【释义】本条是关于民事法律行为有效要件的规定。
民事法律行为效力的有效发生,是当事人实现意思自治目的的关键。但是,民事法律行为并不是在任何情况下都能具备完全有效的条件。民事法律行为的效力可能因民事主体的民事行为能力是否健全、意思表示是否真实、是否违法及违背公序良俗等情形而受影响。因此,民事法律行为除有效外,还包括无效、可撤销、效力待定等其他效力形态。从其他国家和地区看,明确规定民事法律行为有效要件的立法例并不多见。例如,德国、日本和我国台湾地区等的立法,均未明确规定法律行为的有效要件,而是从反向规定了影响法律行为效力状态的各种情形,法律行为如果不具备这些情形,则应当是有效的。但是,也有一些立法例从正面规定了有效要件。 E.g:
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第四节民事法律行为的附条件和附期限
第158条【附条件的民事法律行为】
【条文】民事法律行为可以附条件,但是按照其性质不得附条件的除外。附生效条件的民事法律行为,自条件成就时生效。附解除条件的民事法律行为,自条件成就时失效。
【释义】本条是关于附条件的民事法律行为的规定。
民事法律行为成立之后的效力问题,当事人之间可以自行约定,这也是意思自治原则的体现。民事法律行为中所附条件是指,当事人以未来客观上不确定发生的事实,作为民事法律行为效力的附款。所附条件具有以下特点:
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代丨理
Section I General Provisions
第163条【代理类型】
【条文】代理包括委托代理和法定代理。
委托代理人按照被代理人的委托行使代理权。法定代理人依照法律的规定行使代理权。
【释义】本条是关于代理类型的规定。
根据代理权产生依据的不同,代理可以分为委托代理和法定代理。民法通则第64条规定:“代理包括委托代理、法定代理和指定代理。委托代理人按照被代理人的委托行使代理权,法定代理人依照法律的规定行使代理权,指定代理人按照人民法院或者指定单位的指定行使代理权。”可见,民法通则将代理分为委托代理、法定代理和指定代理三种类型。在制定民法总则的过程中,对指定代理是否为一种单独的代理类型,争议较大。我们认为,指定代理只是法定代理的一种特殊形式,没有必要单独列为一种代理的类型,据此,本法将代理分为委托代理和法定代理两类:
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第二节委托代理
第168条【禁止自己代理和双方代理】
【条文】代理人不得以被代理人的名义与自己实施民事法律行为,但是被代理人同意或者追认的除外。
代理人不得以被代理人的名义与自己同时代理的其他人实施民事法律行为,但是被代理的双方同意或者追认的除外。
【释义】本条是关于禁止自己代理和双方代理的规定。
代理人行使代理权时,应当从被代理人的利益出发,忠实履行代理职责。但在某些特定情形下,可能会存在被代理人、代理人与相对人之间的利益冲突,代理人难免会厚己薄人或者厚此薄彼,此时,法律须作出规范,以保护被代理人的合法权益。最典型的情形就是自己代理和双方代理。
自己代理是指代理人以被代理人的名义与自己实施民事法律行为。实践中,自己代理主要有两种情况:
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第三节代理终止
第174条【委托代理终止例外】
【条文】被代理人死亡后,有下列情形之一的,委托代理人实施的代理行为有效:
(一)代理人不知道并且不应当知道被代理人死亡;
(二)被代理人的继承人予以承认;
(三)授权中明确代理权在代理事务完成时终止;
(四)被代理人死亡前已经实施,为了被代理人的继承人的利益继续代理。
作为被代理人的法人、非法人组织终止的,参照适用前款规定。
【释义】本条是关于委托代理终止例外的规定。
本法第173条规定了委托代理终止的情形,其中规定被代理人死亡和作为被代理人的法人、非法人组织终止时,委托代理终止。但实践情况较为复杂,一概规定委托代理终止不太合理。
《最高人民法院关于贯彻执行〈中华人民共和国民法通则〉若干问题的意见(试行)》第82条对此已有规定:
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民丨事丨责丨任
第184条【自愿实施紧急救助行为】
【条文】因自愿实施紧急救助行为造成受助人损害的,救助人不承担民事责任。
【释义】本条是关于因自愿实施紧急救助行为造成受助人损害的,救助人不承担民事责任的规定。
民法总则出台前,我国法律对自愿实施紧急救助行为造成受助人损害的,救助人是否承担民事责任、如何承担民事责任没有明确规定。民法总则草案一审稿和二审稿也没有本条规定。在十二届全国人大常委会第二十四次会议对草案二审稿进行审议和二审稿征求意见过程中,一些常委委员、全国人大代表、有关部门和单位等提出,草案第178条对因保护他人民事权益使救助人自己受到损害的,由侵权人承担民事责任,受益人给予补偿的规定非常必要,但是社会生活中还有一种情况,即救助人为保护他人民事权益实施紧急救助行为造成受助人损害的,救助人是否应该承担民事责任,如何承担民事责任,建议草案对这一问题作出规定。还有的常委委员提出,为匡正社会风气,化解老人倒地无人敢扶等社会问题,需要强化对见义勇为的救助行为的鼓励和保护,建议根据公平原则和诚实信用原则,对救助行为可能对受助人造成的损害,作出相应的免责规定。有的常委委员建议,在第178条后增加一款作为第2款:
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第185条【侵害英雄烈士等的姓名、肖像、名誉、荣誉的民事责任】
【条文】侵害英雄烈士等的姓名、肖像、名誉、荣誉,损害社会公共利益的,应当承担民事责任。
【释义】本条是关于侵害英雄烈士等的姓名、肖像、名誉、荣誉的民事责任的规定。
民法总则草案一审稿、二审稿和三审稿没有对本条作出规定,在十二届全国人大五次会议审议民法总则草案时增加了这一规定。在十二届全国人大五次会议审议时,有的代表提出,现实生活中,一些人利用歪曲事实、诽谤抹黑等方式恶意诋毁侮辱英烈的名誉、荣誉等,损害了社会公共利益,社会影响很恶劣,应对此予以规范。法律委员会经研究认为:
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诉丨讼丨时丨效
第188条【普通诉讼时效、最长权利保护期间】
【条文】向人民法院请求保护民事权利的诉讼时效期间为三年。 If the law provides otherwise, such provisions shall be followed.
诉讼时效期间自权利人知道或者应当知道权利受到损害以及义务人之日起计算。 If the law provides otherwise, such provisions shall be followed.但是自权利受到损害之日起超过二十年的,人民法院不予保护;有特殊情况的,人民法院可以根据权利人的申请决定延长。
【释义】本条是关于普通诉讼时效期间及起算规则、最长权利保护期间的规定。
一、普通诉讼时效期间
本条第1款规定了普通诉讼时效期间。在民法总则起草过程中,关于普通诉讼时效期间究竟规定多长比较合适,一直存在不同的观点和认识。有的认为,为了保持法律的稳定性和持续性,建议维持民法通则第135条普通诉讼时效期间为二年的规定不变。其主要理由有:
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第191条【未成年人遭受性侵害的损害赔偿请求权的诉讼时效】
【条文】未成年人遭受性侵害的损害赔偿请求权的诉讼时效期间,自受害人年满十八周岁之日起计算。
【释义】本条是关于未成年人遭受性侵害的损害赔偿请求权的诉讼时效期间起算规则的特殊规定。
在民法总则的制定过程中,有的意见提出,当前社会存在一些未成年人遭受性侵害的情况。曾经出现过这样的案例:农村一名七周岁的未成年人的父母长期在外打工,该未成年人由祖父母抚养。村里一名一直没有娶媳妇的单身汉,哄骗诱拐该未成年人与其发生性关系。在有的案例中,未成年少女被性侵害。由于受社会传统观念影响,不少遭受性侵害的未成年人及其监护人有所顾忌,从未成年人名誉、声誉,健康成长,成年结婚等现实等角度思考,往往不愿、不敢公开寻求法律保护。受害人成年之后自己寻求法律救济,却往往已超过诉讼时效期间。这种情况虽然不多,但为了突出对未成年人的保护,给受性侵害的未成年人成年后提供寻求法律保护的机会,建议规定诉讼时效起算的特殊规则。为此,民法总则草案二次审议稿第184条增加规定,未成年人遭受性侵害的损害赔偿请求权的诉讼时效期间,自受害人年满十八周岁之日起计算。
也有的意见提出,民法总则增加这一条规定,对于保护未成年人,特别是保护遭受性侵害的未成年人的权利确实很好。但是,单独把性侵害列出来既不全面,也有点突兀,范围较窄,未成年人可能遭受其他人身损害的情况。例如,实践中有一些养父母虐待养子女的人身侵害,被收养的子女小时候并不敢讲,这种情况是否也要考虑使用本条规定的诉讼时效期间的特殊起算规则。为保护未成年人的人身权利,建议把“性侵害”修改为“人身侵害”,或者把“未成年人遭受性侵害的损害赔偿请求权”修改为“未成年人遭受监护人侵害的损害赔偿请求权”。
还有的意见提出,从立法本意来说,本条突出强调了对遭受性侵害的未成年人的保护,延长受害人主张权利的诉讼时效期间,能够有效保护性犯罪受害人的民事权益。但是,本条不宜写入民法总则,建议删除。其理由是:
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第199条【诉讼时效法定、时效利益不得预先放弃】
【条文】法律规定或者当事人约定的撤销权、解除权等权利的存续期间,除法律另有规定外,自权利人知道或者应当知道权利产生之日起计算,不适用有关诉讼时效中止、中断和延长的规定。存续期间届满,撤销权、解除权等权利消灭。
【释义】本条是关于除斥期间的一般规定。
民法总则草案一审稿、二审稿曾设专节规定了“除斥期间”,即草案一审稿、二审稿第九章第二节“除斥期间”,与第一节“诉讼时效”并列。当时,“除斥期间”一节共有三个条文,分别是一审稿第177条(二审稿第193条):“法律规定或者当事人约定的撤销权、解除权等权利的存续期间,为除斥期间。除斥期间届满,当事人的撤销权、解除权等权利消灭”。一审稿第178条(二审稿第194条):“除斥期间自权利人知道或者应当知道权利产生之日起开始计算。法律另有规定的,依照其规定”。一审稿第179条(二审稿第195条):“除斥期间不适用本法有关诉讼时效中止、中断和延长的规定。”
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期丨间丨计丨算
第203条【期间结束日顺延和末日结束点】
【条文】期间的最后一日是法定休假日的,以法定休假日结束的次日为期间的最后一日。
期间的最后一日的截止时间为二十四时;有业务时间的,停止业务活动的时间为截止时间。
【释义】本条是关于期间结束日顺延和期间末日结束点的规定。
不少境外立法例对期间最后一日的延长、期间末日的结束点有明确规定。例如,《德国民法典》第193条规定,应在某一确定日或者某一期间内作出意思表示或者履行给付,而该确定日或者该期间的最后一日是星期日,或者在表示地或者给付地是国家承认的普通节假日,或者是星期六的,以下一个工作日代替。《俄罗斯民法典》第193条规定,如果期限的最后一日适逢非工作日,则期限终止的日期为该非工作日之后的第一个工作日。第194条规定:
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