法释[1999]19号
(Promulgated by the Supreme¹ People's Court on 19 December 1999, and effective as of 29 December 1999.)
颁布日期：19991219 　实施日期：19991229 　颁布单位：最高人民法院

　　Pursuant to the PRC, Contract Law (the Contract Law), the following interpretation² on issues relevant to the application of the Contract Law by people's courts are made in order to correctly try contract dispute cases:

　　1. Applicable Scope of the Law

　　Article 1　If a dispute arising from a contract formed after the implementation³ of the Contract Law is brought before the people's court, the provisions of the Contract Law shall be applied⁴. If a dispute arising from a contract formed before the implementation of the Contract Law is brought before the people's court, the laws and regulations prevailing⁵ at the time shall be applied, unless otherwise stipulated⁶ herein. If there were no laws and regulations at the time governing the issue(s) in dispute, the relevant provisions of the Contract Law may be applied.

　　Article 2　The relevant provisions of Part Four of the Contract Law shall be applied to disputes arising from the performance of a contract which was formed before the implementation of the Contract Law but whose time limit for performance stipulated in the contract straddles the implementation date of the Contract Law or whose time limit for performance falls after the implementation of the Contract Law.

　　Article 3　When confirming the validity of a contract formed before the implementation of the Contract Law, the people's court shall apply the Contract Law if the contract would be considered invalid⁸ if the law prevailing at the time is applied, but would be considered valid⁷ if the Contract Law is applied.

　　Article 4　After the implementation of the Contract Law, people's courts shall base themselves on laws formulated⁹ by the National people's Congress and its Standing¹⁰ Committee and/or administrative¹¹ regulations of the State Council when confirming the invalidity of a contract, and not on local regulations or administrative rules and regulations.

　　Article 5　When retrying a case in which a final ruling was rendered before the implementation of the Contract Law, the people's court shall not apply the Contract Law.

　　2. Statute¹² of Limitations on Actions

　　Article 6　The people's court shall not protect the rights of a party to a technology contract dispute, if the fact of the infringement¹³ upon the party's rights occurred before the implementation of the Contract Law and more than one year has elapsed between the time the party knew or ought to have known that their rights were infringed¹⁴ and the date of implementation of the Contract Law. If the time elapsed does not exceed one year, the statute of limitations for the institution of an action shall be two years.

　　Article 7　The people's court shall not protect the rights of a party to a technology import or export contract dispute, if the fact of the infringement upon the party's rights occurred before the implementation of the Contract Law and more than two years have elapsed between the time the party knew or ought to have known that their rights were infringed and the date of implementation of the Contract Law. If the time elapsed does not exceed two years, the statute of limitations for the institution of an action shall be four years.

　　Article 8　The period of "one year" stipulated in Article 55 and the period of "five years" stipulated in Article 75 and the second paragraph of Article 104 of the Contract Law are immutable¹⁵ periods of time not governed by the provisions on the tolling¹⁶, interruption or extension of the statute of limitations.

　　3. Validity of Contracts

　　Article 9　In accordance with the second paragraph of Article 44 of the Contract Law, if laws or administrative regulations provide that a contract becomes effective only after the approval procedures or the procedures for approval and registration¹⁷ etc. are carried out, the people's court shall determine a contract to have not become effective if the parties concerned have failed to carry out the approval procedures or the procedures for approval, registration, etc. before the conclusion of argumentation in the court of first instance. If laws or administrative regulations provide that procedures for the registration of a contract shall be carried out but do not provide that the contract shall become effective after registration, the failure of the parties to carry out registration procedures shall not affect the validity of the contract, but ownership of and other rights in rem over the subject matter of the contract may not be assigned.

　　Such circumstances as the amendment¹⁸, assignment or termination of a contract enumerated¹⁹ in the second paragraph of Article 77, Article 87 and the second paragraph of Article 96 of the Contract Law shall be handled on the basis of the provisions of the preceding paragraph.

　　Article 10　The people's court shall not declare a contract invalid because a party exceeded its scope of business in concluding it, unless such party violated State regulations which subject the business so engaged in to restrictions²⁰ or to the grant of franchises²¹, or the provisions of laws or administrative regulations which prohibit such business.

　　4. Right of Subrogation

　　Article 11　For an obligee²² to institute a subrogation action in accordance with Article 73 of the Contract Law, the following conditions shall be met:

　　1. the obligee's claim against the obligor is lawful²³;

　　2. the obligor's negligence²⁴ in exercising their own matured claim causes injury to the obligee;

　　3. the obligor's own claim has matured; and

　　4. the obligor's claim is not personal to the obligor.

　　Article 12　The phrase "such claim is personal to the obligor" mentioned in the first paragraph of Article 73 of the Contract Law means that such claim is a claim for payment arising from a maintenance relationship between spouses²⁵, a parent's maintenance relationship towards their children, a child's maintenance relationship towards their parents or a succession relationship, or a claim for labour remuneration, retirement²⁶ pension, old age pension, survivor's pension, relocation expenses, life insurance indemnification, personal injury indemnification, etc.

　　Article 13　The phrase "If the obligor neglects to exercise their own matured claim, thereby²⁷ causing injury to the obligee" mentioned in Article 73 of the Contract Law refers to the failure of the obligor both to perform their matured obligation toward the obligee and to institute court or arbitral proceedings²⁸ against their own obligor to assert their own matured claim involving a monetary²⁹ payment, thereby causing the obligee's matured claim to be incapable³⁰ of realization³¹.

　　If the secondary obligor (i.e. the obligor of the obligor) holds that the obligor was not negligent³² in exercising their matured claim, the burden of proof is on him.

　　Article 14　If the obligee institutes a subrogation action in accordance with Article 73 of the Contract Law, the competent court shall be the people's court of the place where the defendant³³ is domiciled.

　　Article 15　If the obligee sues the obligor before a people's court and subsequently institutes a subrogation action against the secondary obligor in the same people's court, such second action shall be placed on the docket and accepted if the provisions of Article 13 hereof and the requirements for the institution of actions stipulated in Article 108 of the PRC, Civil Procedure Law are complied with. If the second action does not comply with Article 13 hereof, the obligee shall be informed that they should institute a separate action in the people's court of the place where the secondary obligor is domiciled.

　　The people's court which accepted a subrogation action shall suspend the proceedings in the said action in accordance with Item (e) of Article 136 of the PRC, Civil Procedure Law until the ruling in the action brought by the obligee against the obligor has become legally effective.

　　Article 16　If the obligee institutes a subrogation action in a people's court with the secondary obligor as defendant, but does not name the obligor as a third party, the people's court may join the obligor as a third party.

　　If two or more obligees institute subrogation actions against the same secondary obligor, the people's court may consolidate³⁴ the actions into one trial.

　　Article 17　If the obligee petitions a people's court to issue an order for preservation³⁵ against the secondary obligor's property during a subrogation action, they shall provide appropriate security in the form of property.

　　Article 18　During a subrogation action, the secondary obligor may raise against the obligee the defences available to them against the obligor.

　　If the obligor raises an objection to the claim of the obligee during a subrogation action, and the objection is sustained after investigation³⁶, the people's court shall rule to dismiss the obligee's action.

　　Article 19　If the obligee in a subrogation action prevails, the court costs shall be borne by the secondary obligor and be paid on a priority basis from the realized claim.

　　Article 20　If, having tried a subrogation action brought against the secondary obligor by the obligee, the people's court determines that the obligee does have a right of subrogation, the secondary obligor shall perform the obligation of payment towards the obligee, and the corresponding claim-debt relationships between the obligee and the obligor and between the obligor and the secondary obligor shall be extinguished as at that time.

　　Article 21　If in a subrogation action the amount of the obligee's subrogated claim exceeds the amount of the debt owed by the obligor or the amount of the debt owed by the secondary obligor to the obligor, the people's court shall not support the part in excess.

　　Article 22　If in a subrogation action the obligor institutes an action against the secondary obligor for the part of the claim in excess of the amount of the obligee's subrogated claim, the people's court shall inform the obligor that they should institute a separate action in the competent people's court.

　　If the action instituted by the obligor complies with the legal requirements, the people's court shall accept it. The people's court accepting the obligor's suit shall suspend the proceedings in the action in accordance with the law until the ruling in the subrogation action has become legally effective.

　　5. Right of Annulment³⁸

　　Article 23　If the obligee institutes an annulment action in accordance with Article 74 of the Contract Law, the competent court shall be the people's court of the place where the defendant is domiciled.

　　Article 24　If the obligee institutes an annulment action in accordance with Article 74 of the Contract Law and only names the obligor as defendant, without naming the beneficiary or the assignee as a third party, the people's court may join the beneficiary or the assignee as a third party.

　　Article 25　If the obligee institutes an annulment action in accordance with Article 74 of the Contract Law and petitions the people's court to annul³⁷ the obligor's act of waiving³⁹ their claim or assigning their property, the people's court shall conduct a trial in respect of the part for which the obligee asserts their right of annulment. If the act is annulled⁴⁰ in accordance with the law, it shall be void ab initio.

　　If two or more obligees institute an annulment action against the same obligor in respect of the same subject matter, the people's court may consolidate the actions into one trial.

　　Article 26　Such necessary expenses as attorney fees, travel expenses, etc. incurred⁴¹ by the obligee in exercising their right of annulment shall be borne by the obligor. If a third party is at fault, they shall bear an appropriate share of such expenses.

　　6. The Third Party in a Contract Assignment

　　Article 27　If the obligee assigns their contractual rights to a third party and a subsequent dispute between the obligor and the assignee concerning performance of the contract is brought before the people's court, and the obligor raises a defence against the rights of the obligee, the obligee may be named a third party to the action.

　　Article 28　If the obligor assigns their contractual obligations with the consent of the obligee and a subsequent dispute between the assignee and the obligee concerning performance of the contract is brought before the people's court, and the assignee raises a defense⁴² in respect of the rights of the obligor against the obligee, the obligor may be named as a third party to the action.

　　Article 29　If a party to a contract assigns all their rights and obligations under the contract to an assignee with the consent of the other party and a dispute between the other party and the assignee concerning performance of the contract is brought before the people's court, and the other party raises a defence in respect of the rights and obligations under the contract, the assignor may be named as a third party to the action.

　　7. Concurrent⁴³ Right To Petition

　　Article 30　When instituting an action in the people's court in accordance with Article 122 of the Contract Law, if the obligee modifies their claim after electing the type of liability and before the first hearing, the people's court shall give its permission. If the other party raises an objection concerning jurisdiction⁴⁴ and their objection is sustained after investigation, the people's court shall dismiss the action.

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