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A lawyer's Reading: Law of the People's Republic of China on Application of Law in Foreign-related Civil Relations

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This law adopted recently is a useful source for those who are to enter into business, commercial or personal relationship with China entities or natural person, such as trading, contract, family law, divorce, adoption, conflicts of laws, and dispute resolution.

Law of the People's Republic of China on Application of Law in Foreign-related Civil Relations

Order of the President of the People's Republic of China No. 36

October 28, 2010

The Law of the People's Republic of China on Application of Law in Foreign-related Civil Relations, which was adopted at the 17th Session of the Standing Committee of the Eleventh National People's Congress on October 28, 2010, is hereby promulgated and shall come into effect as of April 1, 2011.

President of the People's Republic of China: Hu Jintao

Law of the People's Republic of China on Application of Law in Foreign-related Civil Relations

(Adopted at the 17th Session of the Standing Committee of the Eleventh National People's Congress on October 28, 2010)

Table of Contents

Chapter I General Provisions

Chapter II Civil Subjects

Chapter III Marriage and Family

Chapter IV Succession

Chapter V Property Rights

Chapter VI Obligatory Rights

Chapter VII Intellectual Property Rights

Chapter VIII Supplementary Provisions

Chapter I General Provisions

Article 1 This law is formulated for the purpose of resolving problems in relation to the application of law in foreign-related civil relations, reasonably settling foreign-related civil disputes and maintaining the legitimate rights and interests of parties concerned.

Article 2 The application of law in foreign-related civil relations shall be determined in accordance with this law. Where there are special provisions in respect of the application of law in foreign-related civil relations in other laws, such provisions shall prevail.

Where this law and other laws do not contain any provision with respect to the application of law in foreign-related civil relations, laws having the most significant contact with the foreign-related civil relations shall apply.

Article 3 Parties concerned may explicitly select laws applicable to a foreign-related civil relation in accordance with the provisions of law.

Article 4 Where the laws of the People's Republic of China contain mandatory provisions in relation to foreign-related civil relations, such provisions shall apply.

Article 5 Where the application of foreign laws will impair the social and public interests of the People's Republic of China, relevant laws of the People's Republic of China shall prevail.

Article 6 Where a foreign-related civil relation is governed by the laws of a foreign country, if different areas of this country are governed by differing laws, the law of the area that has the most significant contact with such foreign-related relation shall apply.

Article 7 Limitation of action shall be governed by a law that is applicable to a specific foreign-related civil relation.

Article 8 The nature of foreign-related civil relations shall be determined in accordance with the law of the forum.

Article 9 Foreign laws applicable to a foreign-related civil relation shall not include the law of a foreign country on the application of laws.

Article 10 Foreign laws applicable to a foreign-related civil relation shall be ascertained by the people's courts, the arbitration institutions or the administrative organs. Where parties concerned select applicable laws of a foreign county, they shall provide relevant laws of such country.

Where the foreign laws are unable to be ascertained or where laws of the foreign country have no relevant provisions, the laws of the People's Republic of China shall apply.

Chapter II Civil Subjects

Article 11 The capacity for civil rights of a natural person shall be governed by the law of the place of habitual residence of the said natural person.

Article 12 The capacity for civil conduct of a natural person shall be governed by law of the place of habitual residence of the said natural person.

Where a natural person conducts civil activities, and the law of the place of habitual residence of the said natural person concludes that the said natural person has no capacity for civil conduct, but the law of the place where the said natural person conducts such civil activities concludes that the said natural person has capacity for civil conduct, the law of the place where the said natural person conducts the civil activities shall prevail, but, laws in relation to marriage, family and succession shall be excluded.

Article 13 Declaration of missing or death of a natural person shall be governed by the law of the place of habitual residence of the said natural person.

Article 14 Issues concerning the capacity for civil rights and civil conduct, institutional framework and shareholders' rights and obligations of a legal person or its branches shall be governed by the laws of the registration place of the said legal person.

Where a legal person's principal place of business is not its registration place, the law of the principal place of business shall prevail. A legal person's place of habitual residence shall be the principal place of business of such legal person.

Article 15 The content of personality right shall be governed by the law of the place of habitual residence of the holder of rights.

Article 16 Issues concerning an agent shall be governed by the law of the place of the act of the said agent, provided that the civil relations between a principal and its agent shall be governed by the law of the place where the principal-agent relation takes place.

Parties concerned may select by agreement laws applicable to issues concerning agency.

Article 17 Parties concerned may select by agreement laws applicable to trust cases. Where parties concerned do not so select, the laws of the place of trust property or the laws of the place where the fiduciary relation takes place shall prevail.

Article 18 Parties concerned may select by agreement laws applicable to arbitration agreements. Where parties concerned do not so select, the laws of the places where the arbitration institutions are located or the arbitration takes place shall prevail.

Article 19 Where the laws of a country of nationality shall apply in accordance with this Law, and a natural person concerned has two or more nationalities, the laws of the country where such person has habitual residence shall apply ; where the said natural person has no habitual residence in any of the countries of nationality, issues concerning the said natural person shall be governed by laws of the country of nationality with the most significant contact with the natural person; issues concerning a natural person without a nationality or without a definite nationality shall be governed by laws of the place of habitual residence.

Article 20 Where the laws of the habitual residence of a natural person shall apply in accordance with this Law, but the habitual residence of such person is uncertain, the laws of the said natural person's current residence shall apply.

Chapter III Marriage and Family

Article 21 Conditions for marriage shall be governed by laws of the place where the common habitual residence of the parties concerned is located; where the parties concerned have not a common habitual residence, the laws of the common country of nationality of the parties concerned shall apply; where parties concerned without a common nationality get married in the place of habitual residence of either party or in the country of nationality of either party, the laws of the place where the marriage is created shall apply.

Article 22 Marriage procedures in conformity with the laws of the place where the marriage is created, the place of habitual residence of either party concerned or the country of nationality of either party concerned shall be valid.

Article 23 The personal relation of a couple shall be governed by the laws of the common habitual residence of the parties concerned; where a couple has not a common habitual residence, the laws of the common country of nationality shall apply.

Article 24 Couples may select by agreement the laws of habitual residence of either party, the laws of the country of nationality of either party, or the laws of the place where either party's major property is located applicable to their marital property relations. Where parties concerned do not so select, the laws of the common habitual residence shall apply; where parties concerned have not a common habitual residence, the laws of the common country of nationality shall prevail.

Article 25 The personal and property relations between parents and their offspring shall be governed by the laws of their common habitual residence; where there is not a common habitual residence, the laws of the place of habitual residence of either party concerned or the laws of the country of nationality of either party which help to safeguard the rights and interests of the weaker party shall apply.

Article 26 Parties to a voluntary divorce may select by agreement the laws of habitual residence of either party or the laws of the country of nationality of either party for their divorce. Where parties concerned do not so select, the laws of the common habitual residence of the parties shall apply; where parties concerned do not have a common habitual residence, the laws of the common country of nationality shall apply; where parties concerned do not have a common nationality, the laws of the place where the institution handling the divorce locates shall apply.

Article 27 Litigation-based divorce shall be governed by the laws of the forum.

Article 28 Adoption conditions and procedures shall be governed by laws of the habitual residence of the adoptee and the adopter. The validity of the adoption shall be governed by the laws of the habitual residence of the adopter; dissolution of the adoptive relations shall be governed by the laws of the habitual residence of the adoptee or the laws of the forum.

Article 29 Support shall be governed by the laws of the habitual residence of either party or the laws of the country of nationality of either party which help to protect the rights and interests of the party which is supported.

Article 30 Guardianship shall be governed by the laws of the habitual residence of either party or the laws of the country of nationality of either party which help to protect the rights and interests of the party under the guardianship.

Chapter IV Succession

Article 31 Statutory succession shall be governed by laws of the habitual residence of the deceased, but the statutory succession of real estates shall be governed by the laws of the places where such real estates are situated.

Article 32 Wills which are made in the manners in compliance with the laws of the habitual residence of the testator when the testament is made or the testator deceases or of the country of nationality of the testator, or of the place of the act of making the will, shall be valid.

Article 33 The validity of the wills shall be governed by the laws of the habitual residence of the testator when the testament is made or the testator deceases or of the country of nationality of the testator.

Article 34 Issues concerning heritage administration shall be governed by the laws of the place of heritage.

Article 35 The attribution of heritage without a successor shall be governed by the laws of the place of the heritage of the decedent.

Chapter V Property Rights

Article 36 The property right of real estates shall be governed by the laws of the place of real estates.

Article 37 Parties concerned may select by agreement laws applicable to movables. Where parties concerned do not so select, laws of the place of movables shall apply.

Article 38 Parties concerned may select by agreement laws applicable to change of the property right of movables in transit. Where parties concerned do not so select, the laws of the destination of transportation shall apply.

Article 39 Negotiable securities shall be governed by laws of the place where the right to the negotiable securities is realized or by the laws with the most significant contact with the negotiable securities.

Article 40 The pledge of rights shall be governed by the laws of the place where the pledge is established.

Chapter VI Obligatory Right

Article 41 Parties concerned may select by agreement laws applicable to contracts. Where parties concerned do not so select, the laws of the habitual residence of the party whose performance of the contractual obligations can fully reflect the characteristics of the contract, or other laws with the most significant contact with the contract shall apply.

Article 42 Consumer contracts shall be governed by laws of the habitual residence of consumers; where consumer select by agreement to apply the laws of places where relevant commodities or services are provided, or where operators do not conduct relevant operational activities in the places of habitual residence of consumers, the laws of the places where relevant commodities or services are provided shall apply.

Article 43 Labor contracts shall be governed by the laws of the places where laborers work; where it is difficult to determine the places where laborers work, the laws of the principal places of business of the employers shall apply. Labor dispatching shall be governed by the laws of the places where labor dispatching takes place.

Article 44 Tort liability shall be governed by the laws of the place of tort. Where parties concerned have a common place of habitual residence, the laws of the common place of habitual residence shall apply. Where parties concerned reach an agreement in relation to the application of relevant laws for the settlement of the tort upon occurrence of a tort, the provisions of the agreement shall apply.

Article 45 Product liabilities shall be governed by laws of the places of habitual residence of the infringed party; where the infringed party select by agreement the laws of the principal place of business of the infringer or the laws of the place of tort, or, the infringer does not conduct operational activities in the place of habitual residence of the infringed party, the laws of the principal place of business of the infringer or the place of tort shall apply.

Article 46 In case of infringement on personality rights including the right of name, portraiture, reputation and privacy via the Internet or other ways, the laws of the habitual residence of the infringed party shall apply.

Article 47 Unjust enrichment and agent of necessity shall be governed by the laws which are selected by parties concerned by agreement. Where parties concerned do not so select, the laws of the common habitual residence of the parties concerned shall apply; where parties concerned have not a common habitual residence, the laws of the place where the unjust enrichment or agent of necessity takes place shall apply.

Chapter VII Intellectual Property Rights

Article 48 Attribution and content of intellectual property rights shall be governed by the laws of the places where protection of intellectual property right is urged.

Article 49 Parties concerned may select by agreement laws applicable to the transfer and licensing of intellectual property rights. Where parties concerned do not so select, relevant provisions hereof in relation to contracts shall apply.

Article 50 Liabilities for infringement on intellectual property rights shall be governed by laws of the places where protection is urged. Parties concerned may also select by agreement to apply laws of the forum, upon the occurrence of intellectual property right infringement.

Chapter VIII Supplementary Provisions

Article 51 Where articles 146 and 147 of the General Principles of the Civil Law of the People's Republic of China and article 36 of the Law of Succession of the People' Republic of China conflict with relevant provisions hereof, relevant provisions shall prevail.

Article 52 This law shall come into effect as of April 1, 2011.

This law is especially useful for those Chinese lawyers who deal with foreign-related cases, like me. Should you have any questions regarding the law, or any other questions, feel free to discuss it with me.

 
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