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중국계약법상의 채권자대위권

이상욱, 진봉영

민사법의이론과실무학회 민사법의 이론과 실무 제13권 제1호 2009.12 pp.25-56

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In the Contract Law of P. R. China Article 73 describes that if the obligor is indolent in exercising its due creditor's right, thus damaging the interests of the obligee, the obligee may request the people's court for subrogation in its own name, except that the creditor's right exclusively belongs to the obligor. The subrogation shall be exercised within the scope of the creditor's right of the obligee. The necessary expenses caused to the obligee by exercising subrogation shall be borne by the obligor, which means china also regulates the rule of creditor's subrogation in different ways. In chinese supreme court case, they promulgate the Supreme People's Court's Interpretations of Certain Issues Concerning the Application of the Contract Law of the People's Republic of China (part One). This complements the system of creditor's subrogation and the obligatory right according to article 11 to article 22. First of all, there are several obligatory rights in one such legal act, One such obligatory right has numerous legal interpretation, but, for chinese case, the pupose of obligatory right would be the purpose of payments. Secondly, due to Contract Law of P. R. China article 73-1. it regulates the how to act the creditor's subrogation. Last of all. refer to the affection of obligee's subrogation, even though china doesn't possess regulation on the creditor's subrogation; however, according to article 20, the creditor's subrogation can be approved at second hand. There are several differences between another countries' creditor's subrogation system and chinese creditor's subrogation system. Due to the fact that china now have good trade relationship between Korea. It is important to look for actual significance of security transactions with clean credits.





한중법학회 중국법연구 제19집 2013.06 pp.81-100

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According to the civil law of continental law countries.,the guarantee liability about blemish is an independent civil liability which,prescribed by the Article of sale contract,is also applied to other onerous contract except employment contract. It is acknowledged that the guarantee liability about blemish has its own characteristic,with reference to contemporary theory of civil law’s mainstream in continental law countries. However,such‘liability’is a kind of default rather than the independent one beyond any scopes. In Chinese <contract law>, there are arguments about weather the guarantee liability about blemish is an independent civil liability,from which the following three kinds of viewpoints are concluded:the independent liability、not independent liability or the compromise. Fundamentally,the author support that the guarantee liability about blemish is not independent liability. Pursuant to Chinese <contract law>, the guarantee liability about blemish is not an totally independent civil liability.Furthermore,it is a relatively independent liability which belongs to the liability for the breach of contract only. Its criterion of liability is liability without fault rather than strict liability, which is the basic criterion of liability for breach of contract.of <contract law>.
瑕疵担保责任是大陆法系国家民法在买卖合同中所确立的一项独立的民事责 任,后来引申适用于除劳动合同以外的其他有偿合同。当代大陆法系主流民法理论虽然仍承认瑕疵担保责任有 自己的一定特性,但不再将其定位为独立的民 事责任,而是将其作为债务不履行责任的一种。在中国《合同法》上,关于瑕 疵担保责任是否为一项独立的民事责任的问题,法学界主要有肯定说、否定说 和折中说三种观点。笔者基本赞同否定说,瑕疵担保责任在中国《合同法》上并非一项独立的民事责任,而是 属于违约责任范畴中的一项相对独立的民事责任,只是其归责原则是无过错责任原则而非《合同法》上违约责 任的基本归 责原则—严格责任而已。



중국통일계약법(CLPRC)의 계약체결상 과실책임에 관한 연구

윤상윤, 오현석

[Kisti 연계] 한국무역상무학회 무역상무연구 Vol.63 2014 pp.63-88

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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.


중국계약법상 화물운송대리에서의 계약책임과 귀책원칙


[Kisti 연계] 한국무역상무학회 무역상무연구 Vol.66 2015 pp.119-148

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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.

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