Law of the People’s Republic of China on Application of Laws to Foreign-Related Civil Relations

 

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

The Law of the People’s Republic of China on Application of Laws to Foreign-Related Civil Relations, adopted on October 28, 2010 at the 17th session of the Standing Committee of the 11th National People’s Congress of the People’s Republic of China, is hereby promulgated and shall come into effect on April 1, 2011.

President of the People’s Republic of China  Hu Jintao

October 28, 2010

 

Law of the People’s Republic of China on Application of Laws to Foreign-Related Civil Relations

(Adopted at the 17th session of the Standing Committee of the 11th National People’s Congress on October 28, 2010)

Table of Contents

Chapter 1 General Provisions

Chapter 2 Civil Subjects

Chapter 3 Marriage and Family

Chapter 4 Succession

Chapter 5 Property Rights

Chapter 6 Creditor’s Rights

Chapter 7 Intellectual Property Rights

Chapter 8 Supplementary Provisions

 

Chapter 1 General Provisions

 

Article 1     This Law is formulated with a view to specifying the application of laws to foreign-related civil relations, resolving foreign-related civil disputes in a reasonable manner, and safeguarding the legitimate rights and interests of the parties concerned.

 

Article 2     Laws applicable to foreign-related civil relations shall be determined in accordance with this Law. Provisions on the application of laws to foreign-related civil relations otherwise prescribed in other laws shall prevail.

In the absence of provisions on the application of laws to foreign-related civil relations as prescribed in this Law and other laws, laws having the most significant relationship with the foreign-related civil relation in question shall apply.

 

Article 3     Parties concerned may, in accordance with the law, expressly choose laws applicable to foreign-related civil relations.

 

Article 4     Mandatory provisions on foreign-related civil relations prescribed in laws of the People’s Republic of China shall directly apply.

 

Article 5     Laws of the People’s Republic of China shall apply where the application of foreign laws will undermine social and public interests of the People’s Republic of China.

 

Article 6     In the event that laws of a given foreign country apply to the foreign-related civil relation in question, if different regions of the foreign country are governed by different laws, laws of the region having the most significant relationship with the foreign-related civil relation shall apply.

 

Article 7     Limitations shall be governed by the laws applicable to the foreign-related civil relation in question.

 

Article 8     Lex fori shall apply in determining the nature of foreign-related civil relations.

 

Article 9     Foreign laws applicable to foreign-related civil relations shall not include laws on the application of laws of the foreign countries.

 

Article 10     Foreign laws applicable to foreign-related civil relations shall be ascertained by people’s courts, arbitration commissions or administrative organs. Parties concerned shall provide laws of the relevant foreign country if they choose to be governed by foreign laws.

In the event that foreign laws are unable to be ascertained or contain no relevant provisions, laws of the People’s Republic of China shall apply.

 

Chapter 2 Civil Subjects

 

Article 11     The capacity for civil rights of natural persons shall be governed by laws of their habitual residence.

 

Article 12     The capacity for civil conduct of natural persons shall be governed by laws of their habitual residence.

In the event that a natural person engages in civil activities, where he/she has no civil conduct capacity in accordance with the laws of the habitual residence but has such capacity in accordance with lex loci actus, the latter shall prevail, except for matters relating to marriage, family and succession.

 

Article 13     Where a natural person is to be declared missing or dead, laws of the habitual residence of the natural person shall apply.

 

Article 14     Laws of the registration place shall apply to the capacity for civil rights, capacity for civil conduct, organizational structure, shareholders’ rights and obligations and other matters of a legal person and the branch offices thereof.

Where the place of principal office of a legal person is different from its place of registration, laws of the place of principal office may apply. The habitual residence of a legal person shall be its place of principal office.

 

Article 15     Contents of the rights of personality shall be governed by laws of the habitual residence of the right holder.

 

Article 16     Agency shall be governed by lex loci actus, provided that the civil relation between the principal and the agent shall be governed by laws of the place of occurrence of the agency relationship.

Parties concerned may choose laws applicable to entrustment and agency by agreement.

 

Article 17     Parties concerned may choose laws applicable to trust by agreement. Where the parties have made no such choice, lex rei sitae of the trust property or laws of the place of occurrence of the trust relationship shall apply.

 

Article 18     Parties concerned may agree upon the laws applicable to an arbitration agreement. Where the parties have made no such choice, laws of the domicile of the arbitration commission or laws of the place of arbitration shall apply.

 

Article 19     In the event that lex patriae applies in accordance with this Law, where a natural person has two (2) or more nationalities, lex patriae of the country with his/her habitual residence shall apply; where no country of nationality has his/her habitual residence, lex patriae of the country having the most significant relationship with him/her shall apply. In the case of stateless natural persons or natural persons without clear nationality, laws of their habitual residence shall apply.

 

Article 20     In the event that laws of the habitual residence shall apply in accordance with this Law, and that the habitual residence of a natural person is unclear, laws of his/her current residence shall apply.

 

Chapter 3 Marriage and Family

 

Article 21     Conditions for marriage shall be governed by laws of the common habitual residence of both parties concerned. In the absence of a common habitual residence, common lex patriae of the parties shall apply. Where the parties are of different nationalities, and the parties get married in the habitual residence or country of nationality of either party, laws of the place of marriage shall apply.

 

Article 22     Formalities for marriage shall be valid if they are in compliance with the laws of the place of marriage, or the laws of the habitual residence or lex patriae of either party.

 

Article 23     Matrimonial personal relationship of a couple shall be governed by laws of their common habitual residence. In the absence of a common habitual residence, the common lex patriae of the couple shall apply.

 

Article 24     Matrimonial property relationship of a couple may be governed by laws of the habitual residence or lex patriae of either party, or lex rei sitae of major properties, as chosen by the couple upon agreement. Where the couple have made no such choice, laws of their common habitual residence shall apply. In the absence of a common habitual residence, the common lex patriae of the couple shall apply.

 

Article 25     Personal and property relationship between parents and children shall be governed by laws of their common habitual residence. In the absence of a common habitual residence, laws of the habitual residence or lex patriae of a party concerned that favors the rights and interests of the weak shall apply.

 

Article 26     In the event of an uncontested divorce, the couple concerned may choose to apply laws of the habitual residence or lex patriae of either party. Where the couple have made no such choice, laws of their common habitual residence shall apply. In the absence of a common habitual residence, the common lex patriae of the couple shall apply. Where the couple are of different nationalities, laws of the place where the agency handling the divorce formalities is located shall apply.

 

Article 27     In the case of a contested divorce, lex fori shall apply.

 

Article 28     Conditions and formalities for adoption shall be governed by both the laws of the habitual residence of the adopter and the laws of the habitual residence of the adoptee. The validity of adoption shall be governed by laws of the habitual residence of the adopter at the time of adoption. Termination of the adoptive relationship shall be governed by lex fori or laws of the habitual residence of the adoptee at the time of adoption.

 

Article 29     Dependence shall be governed by laws of the habitual residence or lex patriae of either party or lex rei sitae of major properties that favors the rights and interests of the dependent.

 

Article 30     Guardianship shall be governed by laws of the habitual residence or lex patriae of either party that favors the rights and interests of the ward.

 

Chapter 4 Succession

 

Article 31     Statutory succession shall be governed by laws of the habitual residence of the decedent at the time of death, provided that statutory succession to real properties shall be governed by lex situs of the properties.

 

Article 32    In the case of succession ex testamento, a will shall be valid if it is in compliance with laws of the habitual residence or lex patriae of the testator or lex loci actus of will creation at the time of death or will creation.

 

Article 33     The validity of a will shall be governed by laws of the habitual residence or lex patriae of the testator at the time of death or will creation.

 

Article 34     Matters relating to the administration of estate shall be governed by lex rei sitae of the estate.

 

Article 35     The ownership of estate left with no successor shall be governed by lex rei sitae of the estate at the time of death of the decedent.

 

Chapter 5 Property Rights

 

Article 36     Property rights of real properties shall be governed by lex situs.

 

Article 37     Parties concerned may choose the laws applicable to property rights of movable properties by agreement. Where the parties have made no such choice, lex rei sitae of the movable properties at the time of occurrence of the legal incident shall apply.

 

Article 38     Parties concerned may agree upon the laws applicable to the change of property rights of movable properties during transport. Where the parties have made no such choice, laws of the transport destination shall apply.

 

Article 39     In the case of marketable securities, laws of the place of realization of the rights of such securities or other laws having the most significant relationship with the securities shall apply.

 

Article 40     Pledge of rights shall be governed by laws of the place where the pledge is instituted.

 

Chapter 6 Creditor’s Rights

 

Article 41     Parties concerned may choose the laws applicable to a contract by agreement. Where the parties have made no such choice, laws of the habitual residence of the party whose performance of obligations best reflects the characteristics of the contract or other laws having the most significant relationship with the contract shall apply.

 

Article 42     A consumer contract shall be governed by laws of the habitual residence of the consumer. Where the consumer chooses to apply laws of the place where the goods or services are provided, or the business operator concerned does not engage in relevant business activities at the habitual residence of the consumer, laws of the place where the goods or services are provided shall apply.

 

Article 43     A labor contract shall be governed by laws of the work place of the laborer. Where it is difficult to determine the work place of the laborer, laws of the place of principal office of the employer shall apply. Labor dispatch services may be governed by laws of the place of dispatch.

 

Article 44     Tort liabilities shall be governed by lex loci delicti, provided that where the parties concerned have a common habitual residence, laws of the common habitual residence shall apply. Agreements on the application of laws reached by the parties concerned after the occurrence of tort shall prevail.

 

Article 45     Product liabilities shall be governed by laws of the habitual residence of the infringed party. Where the infringed party chooses to apply laws of the place of principal office of the infringer or lex loci delicti, or the infringer does not engage in relevant business activities at the habitual residence of the infringed party, laws of the place of principal office of the infringer or lex loci delicti shall apply.

 

Article 46     Infringement on the right of name, portrait, reputation or privacy or other rights of personality via the Internet or by other means shall be governed by laws of the habitual residence of the infringed party.

 

Article 47     In the case of unjust enrichment and negotiorum gestio, laws chosen by the parties concerned by agreement shall apply. Where the parties have made no such choice, laws of the common habitual residence of the parties shall apply. In the absence of a common habitual residence, laws of the place of unjust enrichment or negotiorum gestio shall apply.

 

Chapter 7 Intellectual Property Rights

 

Article 48     The ownership and contents of an intellectual property right shall be governed by laws of the place where protection is claimed.

 

Article 49     Parties concerned may choose the laws applicable to the transfer and user-licensing of intellectual property rights by agreement. Where the parties have made no such choice, provisions on contracts herein shall apply.

 

Article 50     Liabilities for infringement upon intellectual property rights shall be governed by laws of the place where protection is claimed. Parties concerned may also choose to apply lex fori by agreement after occurrence of the infringement.

 

Chapter 8 Supplementary Provisions

 

Article 51     In the event of any discrepancy between this Law and Article 146 and Article 147 of the General Principles of the Civil Law of the People’s Republic of China, as well as Article 36 of the Law of Succession of the People’s Republic of China, this Law shall prevail.

 

Article 52    This Law shall come into effect on April 1, 2011.