• 무역상무연구
• /
• 제23권
• /
• pp.93-127
• /
• 2004

A contract is made when both parties have reached agreement, or they are deemed to have. After contract the law recognizes rights and obligations arising from the agreement. In order to discover whether agreement was reached between these two parties, we have to analyse the process of negotiation. Recently The People's Republic of China legislated a New Contract Law, which has come into effect since 1st of October 1999. This Law adapts the rules of United Nations(Vienna) Convention on Contracts for the International Sale of Goods and the Unidroit Principles for International Commercial Contracts. And this law is now widely enforced to commercial transactions between individuals, enterprises or other economic organizations of the People's Republic of China and foreign enterprises. Therefore, the foreigner who wish to make a sales contract with Chinese should understand the rules of New Contract Law of China. According to this New Law only a contract which contain offer and acceptance is valid and binding, and it is also pointed out that terms of contact must be certain. Though an oral contract is usually equivalent to a written one, in a case of commercial transactions written contract with signature is desirable. The purpose of this paper is to analyze the new rules of this Law and the new features of their application to commercial transactions in China.

• 무역상무연구
• /
• 제67권
• /
• pp.49-68
• /
• 2015

In recent years in China, corresponding to a shift in consumption pattern from household basics to greater expenditure on quality of life, new franchising opportunities arise. Although the franchising prospect in China is promising, Korean companies aiming at franchising into China need to be aware of the legal framework for commercial franchise in China as this will have direct impact on their business expansion. Where franchising activities involve trade mark licence, Chinese Franchise Regulations require such trade mark licence agreement to be regulated in accordance with the relevant provisions of the Chinese Trademark Law. Furthermore where one party fails to perform his obligation and it impacts purpose of the contract seriously, the other party could avoid the contract in accordance with the relevant provisions of the Chinese Contract Law. To launch franchising business successfully in China, Korean companies do market research sufficiently before they may commence franchise business. Korean franchisor must register with local authorities in China by own name, and make Chinese partner take charge of management of the distribution network and invitation of franchisee partners.

• 무역상무연구
• /
• 제66권
• /
• pp.119-148
• /
• 2015

Generally, the liability for breach is defined as the civil liability that arises from the conduct of violation of a contract. There are two notable principles governing liability for breach that have fundamental impacts on the unified Contract Law of the People's Republic of China (hereinafter Chinese Contract Law) in the remedies. In China, during the drafting of the Contract Law, there was a great debate as to whether damages for breach of contract ought to follow the fault principle or to follow the strict liability principle. Ultimately the Chinese Contract Law follows the model of the CISG on this point, namely, it follows the strict liability principle (article 107) with an exemption cause of force majeure. Under Chinese Contract Law, it is interpreted as strict liability in principle. Strict Liability is a notion introduced into Chinese Contract Law from the Anglo-Saxon Law. The strict liability or no fault doctrine, on the contrary, allows a party to claim damages if the other party fails to fulfill his contractual obligations regardless of the fault of the failing party. Pursuant to the strict liability doctrine, if the performance of a contract is due, any non-performance will constitute a breach and the fault on the party in breach is irrelevant. This paper reviews problems of legal character or legal ground of contractual liability in Chinese contract law. Specifically, focusing on the interpretation of Chinese contract law sections and analysis of three cases related contractual liability in freight agency, the paper proposes some implications of structural features of Chinese contract law and international commercial transactions.

• 한국중재학회지:중재연구
• /
• 제23권4호
• /
• pp.191-209
• /
• 2013

The amount of international trade conducted through Hong Kong (HK) is increasing, thus rendering the legal framework governing contracts of sale between Mainland China (China) and HK is of particular importance. The status of HK under the CISG is currently unclear, however. First, the CISG entered into force in China in 1988. This important development had no legal effect for HK though as China lacked the power to enter into international conventions for HK. Second, the "Letter of Notification" deposited to the Secretary-General of the UN referred a list of treaties to be applied to HK, taking effect from July 1, 1997. This list, however, made no mention of the CISG. Third, China made a reservation in Article 95 of the CISG. Pursuant to Article 1(1)(b) of the CISG, the CISG cannot apply to HK. As a result, the Chinese Arbitral Tribunal apply the Chinese law according to the closest connection principle with the contract. In this case, attention must be given to the different result to which the CISG is applied. Liability for damages pursuant to the Chinese Contract Law (CCL) is just the same as Article 74 CISG, but CCL does not govern the case with substitute transaction and without substitute transaction when the contract is avoided. Therefore, the contract should be governed by the CISG from a business perspective when a contract is concluded between China and HK; otherwise, a promisee could not be fully compensated for all loss incurred.

• 무역상무연구
• /
• 제63권
• /
• pp.63-88
• /
• 2014

The culpa in contrahendo is a doctrine that "damages should be recoverable against the party whose blameworthy conduct during negotiations for a contract brought about its invalidity or prevented its perfection". In China, Chinese Civil law gradually adopted Culpa in Contrahendo under the former 'economic contract law' and the 'general rules of the civil law', then the legal system of culpa in contrahendo was formally established under Contract Law of the People's Republic of China(CLPRC) in 1999. To put it concretely, Art. 42, 43, 58 of the Chinese Civil Law expressly establishes a culpa in contrahendo liability derived from a principle of good faith governing pre-contractual negotiations. however, in general, culpa in contrahendo has been recognized a independent legal liability as distinct from contractual default liability and torts liability. This article provides a general description of the characteristics of culpa in contrahendo under Chinese Contract Law, and both theoretical issues that have arisen in Chinese academics and relevant important precedent in Chinese Courts. This article also analyzed trend of judgment on precedents that the Supreme Peoples's Court of the PRC applied culpa in contrahendo.

• 통상정보연구
• /
• 제8권1호
• /
• pp.243-257
• /
• 2006

This study is to introduce the Chinese Contract Law against non-performance of the contract and to solve the wide range of problems involving to executing the trading contract. The parties' liability for the period of performance, the place of performance, the failure to deliver conforming goods together with it's nature of the lack of conformity, and the methods of compensation against damages and the force majeure clauses application. Those issues affect directly to commercial transactions in international business. The focus is more on the interrelationship of private individuals in its trade and on aiming to remove the legal obstacles from the Chinese Contract Law to freely flow of international trade. Reference may include foreign corrupt practices, Conventions on Contracts for the International Sale of Goods and Laws of England, France, and Japan. This study has brought the efforts of these issues in the full spectrum of performance and with concentrations on effectiveness to avoid the different viewpoints of the general principles of CISG and commercial practice founded pre-eminently. This study, in presenting the legal framework, will contribute to a better understanding of the purpose of rules of Chinese Contract -Law as they interact to the benefit of the parties involved in international trade transactions. The writer believes that a problem-oriented approach and the concentration as outlined above would offer a different perspective for law faculty teaching in this area and hope that this study can be sufficiently diverse to satisfy many of those views.

• 한국중재학회지:중재연구
• /
• 제26권1호
• /
• pp.107-134
• /
• 2016

국제상사중재는 <국제물품매매계약에 관한 유엔협약>을 적용하는 중요한 영역이고 본 협약이 국제 통일법적인 역할을 발휘하는데 중요한 지원을 제공하고 있습니다. 중국국제 경제무역중재위원회(CIETAC)는 협약을 가장 많이 적용하여 중재사건을 해결하는 중재위원회이다. 중재재판소는 체약국 법원과 마찬가지로 협약내용을 정확하게 이해하고 정확하게 적용함으로써 사건재판의 질을 제고하고 판결의 공신력을 강화한다. 하지만 중재재판소의 민간성과 독립성으로 인하여 재판소가 협약을 적용하는 법률기초는 소재국 국내 중재법, 중재절차 및 국제중재관례이고, 소재국이 협약을 이행함에 있어서의 국제조약의무가 아니다. 협약과 중국 계약법은 CIETAC 중재재판소가 주요하게 적용하는 법률이다. 중국 계약법 규정에는 협약 제75조, 76조의 내용에 해당하는 차액배상제도가 존재하지 않기 때문에, 판사와 중재재판소는 손해배상금을 확정함에 있어서 보다 많은 자유재량권을 가지므로 협약을 적용하는 것과 중국 계약법을 적용하는 것은 당사자에게 서로 다른 영향을 일으킨다.

• 한국중재학회지:중재연구
• /
• 제24권2호
• /
• pp.183-197
• /
• 2014

1. This study focuses on recent developments of trade transaction between Korea and China. The volume of trade is most rapidly increasing. There have been many items considered to ensure the proper, impartial, and rapid settlement of disputes in private laws by international arbitration. The article contains recent tendencies and proceedings of cases including place of arbitration, language, and so on. 2. The contract made between parties has led to some interpretational, legal questions. Interpretational questions rise mainly from differences of legal systems and legal questions on applying law. The characteristic features of the contract have different meanings, so some articles of the contract can be construed unlawful as a result. 3. As regards the Arbitration Act of Korea, Article 10, the Arbitration Agreement and Interim Measures by Court stipulate the following: A party to an arbitration agreement may request from a court art interim a measure of protection before or during arbitral proceedings. This article examines the application of Article 10 of the Arbitration Act of Korea.

• 한국중재학회지:중재연구
• /
• 제21권3호
• /
• pp.137-163
• /
• 2011

The Law of the People's Republic of China on the Mediation and Arbitration of Rural Land Contract Disputes, which was adopted at the 9th session of the Standing Committee of the 11th National People's Congress of the People's Republic of China on June 27, 2009, is hereby promulgated and shall come into force as of January 1, 2010. This Law is enacted with a view to impartially and timely settling the disputes over contracted management of rural land, maintaining the legitimate rights and interests of the parties concerned and promoting the rural economic development and social stability. The mediation and arbitration of disputes over contracted management of rural land shall be governed by this Law. The disputes over the contracted management of rural land include: 1) disputes arising from the conclusion, fulfillment, modification, cancellation and termination of rural land contracts; 2) disputes arising from the sub-contract, lease, interchange, transfer, holding of shares and other means of turnover of contracted management rights to rural land ; 3) disputes arising from the withdrawal and adjustment of the contracted land; 4) disputes arising from the confirmation of contracted management rights to rural land; 5) disputes arising from impairment to the contracted management rights to rural land; and 6) other disputes over contracted management of rural land as prescribed in law and regulations. The disputes arising from requisition of collectively owned land and the compensations therefor do not fall within the scope of acceptance by the rural land contract arbitration commission, they may be settled by means of administrative reconsideration or lawsuits. In the case of disputes over the contracted management of rural land, the parties may make reconciliation by themselves or may request mediation by the villagers' committee, people's government of the township (town), etc. This study analyzed each process and the main issues on the point of the Mediation and Arbitration of Rural Land Contract Disputes.

• 무역상무연구
• /
• 제54권
• /
• pp.167-190
• /
• 2012

The purpose of this study is to find out some countermeasure to Korean companies entered Chinese market through analyzing an arbitration case resolved by CIETAC applied of Chinese Commission Agency Law and CISG. China create legal relationship between the principal and the third party under Chinese Consignment Contract Law. Korean companies so make sure whether this Contract is included when they conclude international commercial contract. If yes, they have to prove their recognition for the relationship between the principal and the commission agent when needed. If the parties agreed an additional period of time of delivery and the seller do not deliver the goods within this period, this breach might be regarded as fundamental nature and the buyer could declare the contract avoided. In addition, late delivery might also be regarded as fundamental breach when market price is fluctuated. It is understandable that attorney's fees is recoverable one, but it is not understandable that arbitrator's extra expenses such as travel and accommodation expenses is not recoverable with the reason that arbitrator comes outside of the country.