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Notice of the Supreme People's Court on Issuing the Opinions on Several Issues concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China (For Trial Implementation) [Partially Invalid]
最高人民法院印发《关于贯彻执行<中华人民共和国民法通则>若干问题的意见(试行)》的通知 [部分失效]
【法宝引证码】
 
  

 

Notice of the Supreme People's Court on Issuing the Opinions on Several Issues concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China (For Trial Implementation)
(Deliberated and Adopted at the Judicial Committee of the Supreme People's Court on January 26, 1988,No. 6 [1988] of the Supreme People's Court and issued on April 2, 1988)

The local people's court at all levels of the whole nation, the military courts at all levels, all intermediate and grassroots courts of railway transportation, all maritime courts,

The Opinions on Several Issues concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China are hereby issued to you, try it in civil trials and economic trials (no external reprinting). You shall pay attention to making investigation and research, and sum up experiences in the process of the trial implementation, any opinion and problem shall be submitted to the Supreme People's Court.
Annex:
Opinions of the Supreme People's Court on Several Issues concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China (For Trial Implementation)
(Deliberated and Adopted at the Judicial Committee of the Supreme People's Court on January 26, 1988,No. 6 [1988] of the Supreme People's Court and issued on April 2, 1988)
The General Principles of the Civil Law of the People's Republic of China (hereinafter referred to as the General Principles of the Civil Law) came into force as of the date of January 1st, 1987. We hereby put forward the following opinions on the issues encountered in the implementation of the General Principles of the Civil Law:

 最高人民法院印发《关于贯彻执行<中华人民共和国民法通则>若干问题的意见(试行)》的通知
(1988年1月26日最高人民法院审判委员会讨论通过 法(办)发<1988>6号 1988年4月2日发布)


全国地方各级人民法院,各级军事法院,各铁路运输中级法院和基层法院,各海事法院:
现将《关于贯彻执行<中华人民共和国民法通则>若干问题的意见(试行)》发给你们,请在民事审判工作和经济审判工作中试行(对外暂不转载)。在试行过程中,应注意调查研究,总结经验。有何意见和问题,请及时报告我院。
附件:
最高人民法院关于贯彻执行《中华人民共和国民法通则》若干问题的意见(试行)

(1988年1月26日最高人民法院审判委员会讨论通过 法(办)发[1988]6号 1988年4月2日发布)
中华人民共和国民法通则》(以下简称民法通则)已于1987年1月1日起施行。现就民法通则的贯彻执行中遇到的问题提出以下意见。

I. Citizens
   一、公民
1. On Issues concerning the Capacity for Civil Rights and Capacity for Civil Conducts
 (一)关于民事权利能力和民事行为能力问题
(1) A citizen's capacity for civil rights shall begin from his birth. The time of birth shall be subject to proof by his household register; if he has no proof of household register, the birth certificate issued by the hospital in which he was born shall apply. If there is no hospital certificate, other relevant certificate shall be referred to for determination.
 1.公民的民事权利能力自出生时开始。出生的时间以户籍证明为准;没有户籍证明的,以医院出具的出生证明为准。没有医院证明的,参照其他有关证明认定。
(2) A citizen who has reached the age of 16 but not 18 and who can earn income through his own labor and is able to maintain the ordinary living of the local masses, he may be regarded as a person with full capacity for civil conduct with the main source of income from his own labor.
 2.十六周岁以上不满十八周岁的公民,能够以自己的劳动取得收入,并能维持当地群众一般生活水平的,可以认定为以自己的劳动收入为主要生活来源的完全民事行为能力人。
(3) Whether any civil activity conducted by a minor aged 10 or older is appropriate to his age and intellect or not may be determined from such aspects as the degree of connection of the conduct with his own life, whether the minor himself can understand such conduct as to his intellect and foresee the consequence of the corresponding conduct, and the amount of objects of the conduct.
 3.十周岁以上的未成年人进行的民事活动是否与其年龄、智力状况相适应,可以从行为与本人生活相关联的程度、本人的智力能否理解其行为,并预见相应的行为后果,以及行为标的数额等方面认定。
(4) The determination of whether any civil activity conducted by any mentally ill person who is unable to recognize his own conduct is appropriate to his mental health may be made from such aspects as the degree of connection of the conduct with his own life, whether he himself can understand such conduct as to his mental health and foresee the consequence of the corresponding conduct, and the amount of objects of the conduct.
 4.不能完全辨认自己行为的精神病人进行的民事活动,是否与其精神健康状态相适应,可以从行为与本人生活相关联的程度、本人的精神状态能否理解其行为,并预见相应的行为后果,以及行为标的数额等方面认定。
(5) A mentally ill person (including an imbecile) may be determined as a person who cannot identify his own conduct if he has no judgment ability and self-protection ability and does not know the consequences of his conduct; if he lacks judgment ability and self-protection ability for more complicated things or greater conducts, and cannot foresee the consequence of his conduct, he may be determined as a person who is unable to fully recognize his own conduct.
 5.精神病人(包括痴呆症人)如果没有判断能力和自我保护能力,不知其行为后果的,可以认定为不能辨认自己行为的人;对于比较复杂的事物或者比较重大的行为缺乏判断能力和自我保护能力,并且不能预见其行为后果的,可以认定为不能完全辨认自己行为的人。
(6) In case any person with no capacity for civil conduct or with limited capacity for civil conduct accepts rewards, donations, or remunerations, no other person may claim the invalidity of the above-mentioned conducts by the reason that the person has no capacity for civil conduct or with limited capacity for civil conduct.
 6.无民事行为能力人、限制民事行为能力人接受奖励、赠与、报酬,他人不得以行为人无民事行为能力、限制民事行为能力为由,主张以上行为无效。
(7) Whether a party suffers from psychosis, the people's court shall identify according to the judicial psychiatry or determine by referring to the diagnosis and identification of the hospital. Under the condition that there is no condition for the diagnosis and identification, it may also determine it by referring to the recognized state of mental health of the party, but shall be within the limit that the interested parties have no objection.
 7.当事人是否患有精神病,人民法院应当根据司法精神病学鉴定或者参照医院的诊断、鉴定确认。在不具备诊断、鉴定条件的情况下,也可以参照群众公认的当事人的精神状态认定,但应以利害关系人没有异议为限。
(8) Where any party or his interested party proposes that one party suffers from the psychosis (including dementia), and the people's court believes it necessary to make a determination, it shall make judgment on whether the parties have the capacity for civil conducts in accordance with the special procedures as prescribed by the Civil Procedure Law (for Trial Implementation).
Trials shall be conducted in accordance with the special procedures as prescribed in the Civil Procedure Law (for Trial Implementation) for determining whether a mentally ill person (including an imbecile) is a person with limited capacity for civil behavior.
 8.在诉讼中,当事人及利害关系人提出一方当事人患有精神病(包括痴呆症),人民法院认为确有必要认定的,应当按照民事诉讼法(试行)规定的特别程序,先作出当事人有无民事行为能力的判决。
确认精神病人(包括痴呆症人)为限制民事行为能力人的,应当比照民事诉讼法(试行)规定的特别程序进行审理。
(9) The place where a citizen lives for over one year consecutively after leaving the domicile is the habitual residence, excluding the case when the citizen lives in the hospital for medical treatment.
Before a citizen moves to another place after moving out of the place where his residence is registered and has no habitual residence, the place where his residence is registered shall still be the domicile.
 9.公民离开住所地最后连续居住一年以上的地方,为经常居住地。但住医院治病的除外。
公民由其户籍所在地迁出后至迁入另一地之前,无经常居住地的,仍以其原户籍所在地为住所。
2. On Guardianship Issues
 (二)关于监护问题
(10) The duty of guardianship of a guardian shall include: protect the personal health of his wards, take care of the life of the wards, manage and protect the property of his wards, and act as the agent of his wards to conduct civil activities, take charge of and educate on the wards, act as agent of his ward to file litigation in case the legal rights and interests of his ward is infringed upon or the ward has any dispute with any other person.
 10.监护人的监护职责包括:保护被监护人的身体健康,照顾被监护人的生活,管理和保护被监护人的财产,代理被监护人进行民事活动,对被监护人进行管理和教育,在被监护人合法权益受到侵害或者与人发生争议时,代理其进行诉讼。
(11) The guardianship ability of a guardian shall be determined according to such factors as the physical health and economic conditions of the wards, and the connection between the guardian and his ward in life, etc..
 11.认定监护人监护能力,应当根据监护人的身体健康状况、经济条件,以及与被监护人在生活上的联系状况等因素确定。
(12) The close relatives as prescribed in the General Principles of the Civil Law shall include: spouse, parents, children, brothers and sisters, paternal or maternal grandparent, grandchildren, and maternal grandchildren.
 12.民法通则中规定的近亲属,包括配偶、父母、子女、兄弟姐妹、祖父母、外祖父母、孙子女、外孙子女。
(13) The provisions of Article 16 of the General Principles of Civil Law shall be applied for the determination of guardians for minors who suffer from mental illness.
 13.为患有精神病的未成年人设定监护人,适用民法通则十六条的规定。
(14) When designating guardians, the people's court may regard the items (1) (2) and (3) of paragraph 2 of Article 16 of the General Principles of the Civil Law and the items (1) (2) (3) (4) and (5) of paragraph 1 of Article 17 as the sequence for designating guardians. In case the persons who has the qualification of guardianship in the first sequence have no guardian capacity or is bad to the wards, the people's court may, in light of the principle of favoring the wards, determine the guardians by choosing the best one in the persons who have the qualification of guardianship in the second sequence. If the ward has identification ability, his opinions shall be solicited according to the circumstances.
A guardian may be one person or may be several persons in the same one order.
 14.人民法院指定监护人时,可以将民法通则十六条第二款中(一)、(二)、(三)项或第十七条第一款中的(一)、(二)、(三)、(四)、(五)项规定视为指定监护人的顺序。前一顺序有监护资格的人无监护能力或者对被监护人明显不利的,人民法院可以根据对被监护人有利的原则,从后一顺序有监护资格的人中择优确定。被监护人有识别能力的,应视情况征求被监护人的意见。
监护人可以是一人,也可以是同一顺序中的数人。
(15) In case the persons who have the qualification of guardianship determine the guardians by agreement, the guardian who is determined by agreement shall undertake guardianship liabilities to the wards.
 15.有监护资格的人之间协议确定监护人的,应当由协议确定的监护人对被监护人承担监护责任。
(16) In case any dispute arises over the acting of guardians, the relevant organizations shall make designation in accordance with the provisions of paragraph 3, Article 16 or paragraph 2, Article 17 of the General Principles of the Civil Law. If anyone lodges a lawsuit to the people's court without designation, the people's court shall reject it.
 16.对于担任监护人有争议的,应当按照民法通则十六条第三款或者第十七条第二款的规定,由有关组织予以指定。未经指定而向人民法院起诉的,人民法院不予受理。
(17) In case the relevant organization designates guardians in light of the provisions of the General Principles of the Civil Law, if the designated person is notified in writing or orally, the designation shall be deemed as valid. If the designated person is dissatisfied with the designation, he shall lodge a complaint to the people's court within 30 days from the morrow after receiving the notice. If he files a suit beyond the time limit, it shall be dealt with as the alteration of guardianship relation.
 17.有关组织依照民法通则规定指定监护人,以书面或者口头通知了被指定人的,应当认定指定成立。被指定人不服的,应当在接到通知的次日起三十日内向人民法院起诉。逾期起诉的,按变更监护关系处理。
(18) A guardian shall not be altered without permission after being designated. If anyone alters the guardian without permission, the originally designated guardian and the guardian being altered shall undertake guardianship liabilities.
 18.监护人被指定后,不得自行变更。擅自变更的,由原被指定的监护人和变更后的监护人承担监护责任。
(19) In case the designated person is dissatisfied with the designation and files a lawsuit, the people's court shall make judgment on keeping or withdrawing the designated guardian according to the provisions of Article 14 of the present Opinions. If the judgment withdraws the original designation, another guardian may be designated at the same time. The trial of such cases shall be carried out by applying the special procedures as prescribed in Civil Procedure Law (for Trial Implementation) by analogy.
The guardianship liability before the people's court makes judgment shall be borne by the person who has the guardianship qualification in light of the sequence of designated guardians.
 19.被指定人对指定不服提起诉讼的,人民法院应当根据本意见第十四条的规定,作出维持或者撤销指定监护人的判决。如果判决是撤销原指定的,可以同时另行指定监护人。此类案件,比照民事诉讼法(试行)规定的特别程序进行审理。
在人民法院作出判决前的监护责任,一般应当按照指定监护人的顺序,由有监护资格人承担。
(20) In case a guardian fails to perform guardianship duties or infringes the legal rights and interests of the wards, and other person or entity that has guardianship qualification files a complaint to the people's court in accordance with the provisions of Articles 16 and 17 of the General Principles of the Civil Law to require the guardian to undertake civil liabilities, the case shall be tried in light of common procedures; if the above-mentioned person or entity pleads altering the guardianship relations, the case shall be tried in light of special procedures; if the party requires both undertake civil liability and alter guardianship relation, the case shall be tried separately.
 20.监护人不履行监护职责,或者侵害了被监护人的合法权益,民法通则十六条、第十七条规定的其他有监护资格的人或者单位向人民法院起诉,要求监护人承担民事责任的,按照普通程序审理;要求变更监护关系的,按照特别程序审理;既要求承担民事责任,又要求变更监护关系的,分别审理。
(21) After a spouse is divorced, the party living together with the children has no right to cancel the guardianship right of the other party to the children, but excluding the circumstances that the party that does not live together with the children has criminal acts, abusing acts to the children or is obviously bad to the children, and the people's court believes the guardianship may be cancelled.
 21.夫妻离婚后,与子女共同生活的一方无权取消对方对该子女的监护权,但是,未与该子女共同生活的一方,对该子女有犯罪行为、虐待行为或者对该子女明显不利的,人民法院认为可以取消的除外。
(22) A guardian may entrust part or all the guardianship duties to others. In case it is necessary to undertake civil liabilities due to the tortious acts of the ward, the liabilities shall be borne by the guardian, unless there are different stipulations; if the entrusted person really has fault, he shall undertake several and joint liabilities.
 22.监护人可以将监护职责部分或者全部委托给他人。因被监护人的侵权行为需要承担民事责任的,应当由监护人承担,但另有约定的除外;被委托人确有过错的,负连带责任。
(23) Where after one party of a spouse dies, the other party sends the child to any other person for adoption, if the adoption has no bad effect to the healthy growth of the child, and legal adoption formalities have been gone through, the adoption relation shall be deemed as valid; the other person that has the guardianship qualification shall not claim the invalidation of the adoption relation on the ground that he has not agreed to the adoption.
 23.夫妻一方死亡后,另一方将子女送给他人收养,如收养对子女的健康成长并无不利,又办了合法收养手续的,认定收养关系成立;其他有监护资格的人不得以收养未经其同意而主张收养关系无效。
3. On Issues concerning the Declaration of Missing Persons and Death
 (三)关于宣告失踪、宣告死亡问题
(24) The interested party who applies for declaration of missing persons shall include: the spouse, parents, children, brothers and sisters, paternal grandparents, maternal grandparents, grandchildren, maternal grandchildren of the person being declared missing, and other persons who have civil right and obligation relations with the person applied for.
 24.申请宣告失踪的利害关系人,包括被申请宣告失踪人的配偶、父母、子女、兄弟姐妹、祖父母、外祖父母、孙子女、外孙子女以及其他与被申请人有民事权利义务关系的人。
(25) The sequence of the interested party who may apply for declaration of death shall be:
 25.申请宣告死亡的利害关系人的顺序是:
a. Spouse;
 (一)配偶;
b. Parents, children;
 (二)父母、子女;
c. Brothers and sisters, paternal grandparents, maternal grandparents, grandchildren, and maternal grandchildren; and
 (三)兄弟姐妹、祖父母、外祖父母、孙子女、外孙子女;
d. Other person having the connection of civil rights and obligations.
The application for revocation of the declaration of death shall not be restricted by the above-mentioned order.
 (四)其他有民事权利义务关系的人。
申请撤销死亡宣告不受上列顺序限制。
(26) The "whereabouts is unknown" shall refer to the status that a citizen leaves his final domicile and has no message. In case a citizen lives in Taiwan or abroad and is unable to be contacted through ordinary communications, he shall not be declared dead on the ground that his whereabouts is unknown.
 26.下落不明是指公民离开最后居住地后没有音讯的状况。对于在台湾或者在国外,无法正常通讯联系的,不得以下落不明宣告死亡。
(27) If a person's whereabouts becomes unknown during a war, the provisions of item (1) of paragraph 1, Article 23 of the General Principles of the Civil Law shall be applicable to the period for applying for declaration of death.
 27.战争期间下落不明的,申请宣告死亡的期间适用民法通则二十三条第一款第一项的规定。
(28) The computation of the time when a citizen's whereabouts becomes unknown as prescribed in item (1) of Article 20, and item (1), paragraph 1 of Article 23 shall begin from the morrow when the citizen's message disappears.
Cases concerning the declaration of a missing person shall be subject to the jurisdiction of the grassroots people's court at the domicile of the person being declared missing. If the domicile is not the same as the residence, it shall be ruled by the grassroots people's court in his final residence.
 28.民法通则二十条第一款、第二十三条第一款第一项中的下落不明的起算时间,从公民音讯消失之次日起算。
宣告失踪的案件,由被宣告失踪人住所地的基层人民法院管辖。住所地与居住地不一致的,由最后居住地基层人民法院管辖。
(29) The declaration of a missing person is not the necessary procedure for declaration of his death. The interested party may directly apply for declaration of death without applying for declaration of missing. But if the interested party only applies for declaration of missing, the people's court shall declare person the missing; if in an interested relation of the same sequence, someone applies for declaration of death, someone disagrees with the declaration of death, the people's court shall declare death.
 29.宣告失踪不是宣告死亡的必经程序。公民下落不明,符合申请宣告死亡的条件,利害关系人可以不经申请宣告失踪而直接申请宣告死亡。但利害关系人只申请宣告失踪的,应当宣告失踪;同一顺序的利害关系,有的申请宣告死亡,有的不同意宣告死亡,则应当宣告死亡。
(30) In case the people's court designates a custodian for the property of the missing person, the designation shall be made in light of the principle of being conducive to the protection of the property of the missing person. In case there are no custodians as prescribed in Article 21 of the General Principles of the Civil Law or they are unable to act as custodians, or are not appropriate for acting as custodians, the people's court may designate citizens or the relevant organizations to act as custodian for the property of the missing person.
In case a person without capacity for civil conduct or with limited capacity for civil conduct and whose whereabouts is unknown, his guardian shall be the custodian for his property.
 30.人民法院指定失踪人的财产代管人,应当根据有利于保护失踪人财产的原则指定。没有民法通则二十一条规定的代管人,或者他们无能力作代管人,或者不宜作代管人的,人民法院可以指定公民或者有关组织为失踪人的财产代管人。
无民事行为能力人、限制民事行为能力人失踪的,其监护人即为财产代管人。
(31) "Other expenses" as mentioned in paragraph 2, Article 21 of the General Principles of the Civil Law shall include: estovers, maintenance fees, fostering fees, and overheads needed for putting the property in custody and other necessary fees.
 31.民法通则二十一条第二款中的“其他费用”,包括赡养费、扶养费、抚育费和因代管财产所需的管理费等必要的费用。
(32) In case the custodian for the property of a missing person refuses to pay the tax money, debts and other expenses owed by the missing person, and the creditor thereby files a lawsuit, the people's court shall list the custodian as the defendant.
In case the custodian of a missing person requests the debtor of the missing person to repay the debts, he may file a lawsuit as plaintiff.
 32.失踪人的财产代管人拒绝支付失踪人所欠的税款、债务和其他费用,债权人提起诉讼的,人民法院应当将代管人列为被告。
失踪人的财产代管人向失踪人的债务人要求偿还债务的,可以作为原告提起诉讼。
(33) In case a debtor's whereabouts is unknown, but he is not declared missing, and the creditor files a lawsuit requiring him repay the debts, the people's court may make a default judgment after making summons through public notice or handle it as suspension of litigation.
 33.债务人下落不明,但未被宣告失踪,债权人起诉要求清偿债务的,人民法院可以在公告传唤后缺席判决或者按中止诉讼处理。
(34) The people's court shall hear a case of declaration of missing person by analogy to the special procedures as prescribed in the Civil Procedure Law (for Trial Implementation).
The people's court shall find out the property of the person being declared missing when hearing the case of declaration of missing person, and designate a temporary custodian or take preservative measures in litigation, and issue a notice of finding out the person missing, the period of public notice for which shall be half a year. At the expiry of the public notice, the people's court shall make judgment on the declaration of missing person or ruling on the termination of the trial on the basis whether the fact that the missing of the person being declared missing has been confirmed. If the person is adjudicated a missing person, a property custodian shall be designated for the missing person at the same time.
 34.人民法院审理宣告失踪的案件,比照民事诉讼法(试行)规定的特别程序进行。
人民法院审理宣告失踪的案件,应当查清被申请宣告失踪人的财产,指定临时管理人或者采取诉讼保全措施,发出寻找失踪人的公告,公告期间为半年。公告期间届满,人民法院根据被宣告失踪人失踪的事实是否得到确认,作出宣告失踪的判决或者终结审理的裁定。如果判决宣告为失踪人,应当同时指定失踪人的财产代管人。
(35) In case a custodian for the property of a missing person is unable to perform the custody duty, and applies for alteration of the custodian, the people's court shall make trial by analogy to the special procedures.
In case the custodian for the property of a missing person fails to perform the duty of custody or violates the property rights of a missing person, the interested party may appeal to the people's court requiring the custodian undertake civil liabilities. If he applies to the people's court for alteration of the custodian for property at the same time, the alteration litigation shall be heard separately by analogy to the special procedures.
 35.失踪人的财产代管人以无力履行代管职责,申请变更代管人的,人民法院比照特别程序进行审理。
失踪人的财产代管人不履行代管职责或者侵犯失踪人财产权益的,失踪人的利害关系人可以向人民法院请求财产代管人承担民事责任。如果同时申请人民法院变更财产代管人的,变更之诉比照特别程序单独审理。
(36) For a person that is declared dead, the date of adjudication of the judgment shall be the date for his death. The judgment shall, in addition to being issued to the applicant, also be announced at the resident place of the person declared dead and the locality of the people's court.
In case the time for declaration of death and that of the natural death is inconsistent with each other, the legal effect arising from the declaration of death shall remain effective, but if the civil legal conduct implemented before natural death conflicts with the legal consequence arising from declaration of death, the civil legal conduct implemented shall prevail.
 36.被宣告死亡的人,判决宣告之日为其死亡的日期。判决书除发给申请人外,还应当在被宣告死亡的人住所地和人民法院所在地公告。
被宣告死亡和自然死亡的时间不一致的,被宣告死亡所引起的法律后果仍然有效,但自然死亡前实施的民事法律行为与被宣告死亡引起的法律后果相抵触的,则以其实施的民事法律行为为准。
(37) The marital relationship of a person being declared dead with his/her spouse shall annihilate from the date of declaration of death. If after the declaration of death is revoked by the people's court, and his/her spouse has not remarried, the husband and wife relationship shall automatically resume from the date of withdrawing the death declaration; if his/her spouse is divorced after having remarried or his/her spouse's spouse dies after having remarried, the husband and wife relationship shall not resume automatically.
 37.被宣告死亡的人与配偶的婚姻关系,自死亡宣告之日起消灭。死亡宣告被人民法院撤销,如果其配偶尚未再婚的,夫妻关系从撤销死亡宣告之日起自行恢复;如果其配偶再婚后又离婚或者再婚后配偶又死亡的,则不得认定夫妻关系自行恢复。
(38) Where a person's child is adopted by another person during the period when he is being declared dead, if he claims for invalidation of the adoption relations only by the reason that he does not agree with the adoption after the death declaration is revoked, his claim shall not be permitted, unless the adopter and the adoptee both agree.
 38.被宣告死亡的人在被宣告死亡期间,其子女被他人依法收养,被宣告死亡的人在死亡宣告被撤销后,仅以未经本人同意而主张收养关系无效的,一般不应准许,但收养人和被收养人同意的除外。
(39) If an interested party disguises facts and causes other person's being declared dead, and he therefore obtains its property, he shall, apart from returning the protoplast and the interests, make compensation on the losses he causes.
 39.利害关系人隐瞒真实情况使他人被宣告死亡而取得其财产的,除应返还原物及孳息外,还应对造成的损失予以赔偿。
(40) In case a person asks for returning his property after the death declaration is revoked, the third party may not return the original thing if he obtained it legally. But any citizen or organization that has obtained the original thing according to the inherit law, the original thing shall be returned or proper compensation shall be granted.
 40.被撤销死亡宣告的人请求返还财产,其原物已被第三人合法取得的,第三人可不予返还。但依继承法取得原物的公民或者组织,应当返还原物或者给予适当补偿。
4. Issues on Individual Business, Rural Household Engaged in Contracted Business and Individual Partnership
 (四)关于个体工商户、农村承包经营户、个人合伙问题
(41) For an individual business that has its own shop name, the litigant shall be the householder (owner) registered in the business license in a civil action, and the litigation documents shall indicate that he is the householder of a business.
 41.起字号的工商户,在民事诉讼中,应以营业执照登记的户主(业主)为诉讼当事人,在诉讼文书注明系某字号的户主。
(42)In case an individual business applies for registration in the name of a citizen himself or a rural household engaged in contracted business contracted by an individual, who makes investment by jointly owned property of the family, or the major part of the income is shared by the family members, its debts shall be paid off with the jointly owned property of the family.
 42.以公民个人名义申请登记的个体工商户和个人承包的农村承包经营户,用家庭共有财产投资,或者收益的主要部分供家庭成员享用的,其债务应以家庭共有财产清偿。
(43) During the existence of a husband and wife relationship, if either party engages in individual business operation or contracted business and the income is jointly owned by the spouses, the debts shall be repaid with the jointly owned property of the spouses.
 43.在夫妻关系存续期间,一方从事个体经营或者承包经营的,其收入为夫妻共有财产,债务亦应以夫妻共有财产清偿。
(44) If an individual business or rural household engaged in contracted business undertakes liabilities for its debts by using the jointly owned property of the family, the necessities for life and necessary production tools shall be kept for his family members.
 44.个体工商户、农村承包经营户的债务,如以其家庭共有财产承担责任时,应当保留家庭成员的生活必需品和必要的生产工具。
(45) An individual partnership with a shop name shall have the legally approved and registered shop name as the litigant in civil action, and the person in-charge of the partnership shall be the litigation representative. The litigation act of the responsible person of the partnership shall have legal effect to all the partners.
For an individual partnership without a shop name, the partners shall be the common litigants. In case there are numerous partners, a litigation representative shall be elected to take part in the litigation, and the litigation act of the litigation representative shall have legal effect to all the partners. Written formalities shall be handled for the election of a litigation representative.
 45.起字号的个人合伙,在民事诉讼中,应当以依法核准登记的字号为诉讼当事人,并由合伙负责人为诉讼代表人。合伙负责人的诉讼行为,对全体合伙人发生法律效力。
未起字号的个人合伙,合伙人在民事诉讼中为共同诉讼人。合伙人人数众多的,可以推举诉讼代表人参加诉讼,诉讼代表人的诉讼行为,对全体合伙人发生法律效力。推举诉讼代表人,应当办理书面手续。
(46) In case a citizen provides capital or in-kinds according to the agreement, and is allowed to take part in the distribution of the surplus of the partnership, but not to take part in the business operation and work of the partnership, or if he provides technical labor service and does not provides capital or in-kinds, but is allowed to take part in the distribution of the surplus, he shall be regarded as a partner.
 46.公民按照协议提供资金或者实物,并约定参与合伙盈余分配,但不参与合伙经营、劳动的,或者提供技术性劳务而不提供资金、实物,但约定参与盈余分配的,视为合伙人。
(47) All the partners shall be jointly and severally liable for the amount of loss arising from the business operation of the partnership to outsiders; while among themselves, the partners shall undertake liability for debts according to the proportion as stipulated in the agreement or the proportion of contributions; if the proportion of debts undertaken or no proportion of contribution is stipulated in the agreement, they may undertake liabilities according to the stipulations or the actual surplus distribution proportion. But any partner who has faults for the loss of business operation of the partnership shall undertake liabilities to the extent of his faults.
 47.全体合伙人对合伙经营的亏损额,对外应当负连带责任;对内则应按照协议约定的债务承担比例或者出资比例分担;协议未规定债务承担比例或者出资比例的,可以按照约定的或者实际的盈余分配比例承担。但是对造成合伙经营亏损有过错的合伙人,应当根据其过错程度相应的多承担责任。
(48) Any partner who only provides technical labor services but does not provide capital or in-kinds shall take joint and several liabilities for the amount of loss of the business operation of the partnership to outsiders, and shall undertake liabilities according to the proportion of debts as stipulated in the agreement among themselves or in light of the proportion of surplus distribution proportion as stipulated or the surplus distribution proportion actually effected; if there is no surplus distribution proportion, they shall undertake liability in light of the average investment proportion of other partners.
 48.只提供技术性劳务,不提供资金、实物的合伙人,对于合伙经营的亏损额,对外也应当承担连带责任;对内则应当按照协议约定的债务承担比例或者技术性劳务折抵的出资比例承担;协议未规定债务承担比例或者出资比例的,可以按照约定的或者合伙人实际的盈余分配比例承担;没有盈余分配比例的,按照其余合伙人平均投资比例承担。
(49) In case any individual partnership or individual business is falsely registered as a collective ownership enterprise by the administrative department for industry and commerce, but is in fact an individual partnership or individual business, it shall be treated as individual partnership or individual business.
 49.个人合伙或者个体工商户,虽经工商行政管理部门错误地登记为集体所有制的企业,但实际为个人合伙或者个体工商户的,应当按个人合伙或者个体工商户对待。
(50) If the parties have no written partnership agreement between them and are not approved for registration by the administrative department for industry and commerce, but have other conditions for partnership, and meanwhile have been proved by two or more persons without any relation of interests to have entered into an oral partnership agreement, the people's court may determine that they are in partnership relations.
 50.当事人之间没有书面合伙协议,又未经工商行政管理部门核准登记,但具备合伙的其他条件,又有两个以上无利害关系人证明有口头合伙协议的,人民法院可以认定为合伙关系。
(51) In case any partner joins a partnership during the process of business operation of the partnership, and if there are stipulations about it in the written agreement, it shall be handled according to the agreement; if there are no stipulations in the written agreement, it shall win the consent of all the partners, and if it fails to win the consent of all the partners, his joining the partnership shall be deemed as invalid.
 51.在合伙经营过程中增加合伙人,书面协议有约定的,按照协议处理;书面协议未约定的,须经全体合伙人同意,未经全体合伙人同意的,应当认定入伙无效。
(52) In case a partner withdraws from a partnership, and if there are stipulations in the written agreement, it shall be handled according to the agreement; if there are no stipulations in the written agreement, the withdrawal shall be permitted in principle. But if other partners suffer losses due to the withdrawal, his compensation liability for them shall be determined by considering the causes, reasons for the withdrawal and the faults of the two parties, and other relevant conditions.
 52.合伙人退伙,书面协议有约定的,按书面协议处理;书面协议未约定的,原则上应予准许。但因其退伙给其他合伙人造成损失的,应当考虑退伙的原因、理由以及双方当事人的过错等情况,确定其应当承担的赔偿责任。
(53) In case losses are incurred during the business operation of a partnership, and any partner who fails to undertake the debts of the partnership as stipulated or fails to properly share the debts, the withdrawing partner shall undertake liabilities for paying off the debts of the former partnership; if the withdrawing partner has undertaken the debts of the partnership, he shall still be jointly and severally liable for all the debts during his participation in the partnership.
 53.合伙经营期间发生亏损,合伙人退出合伙时未按约定分担或者未合理分担合伙债务的,退伙人对原合伙的债务,应当承担清偿责任;退伙人已分担合伙债务的,对其参加合伙期间的全部债务仍负连带责任。
(54) The partnership property divided when any partner withdraws from the partnership shall include the property invested in the partnership when the partner entered into the partnership and the accumulated property during the existing period of the partnership, as well as the creditor's rights and debts during the exiting period of the partnership. The original things contributed when the partner entered into the partnership shall, as a general rule, be returned when he withdraws from the partnership; if it is difficult to check and return them once for all, they shall be checked and returned by batches and by stages; if it is really difficult to return the original things, they shall be converted into money.
 54.合伙人退伙时分割的合伙财产,应当包括合伙时投入的财产和合伙期间积累的财产,以及合伙期间的债权和债务。入伙的原物退伙时原则上应予退还;一次清退有困难的,可以分批分期清退;退还原物确有困难的,可以折价处理。
(55) When a partnership terminates, the partnership property shall be handled according to the written agreement, if any; in case there is no written agreement, nor can the partners reach an agreement through negotiation, it shall be properly handled by taking the opinions of the majority partners into consideration, if the partners contribute the same amount of capital; if the amount of capital contributed by the partners is not the identical, the property shall be handled in light of the opinions of the partners whose amount of contribution accounts for a larger portion of the total partnership contributions, but the interests of other partners shall also be protected.
 55.合伙终止时,对合伙财产的处理,有书面协议的,按协议处理;没有书面协议,又协商不成的,如果合伙人出资额相等,应当考虑多数人意见酌情处理;合伙人出资额不等的,可以按出资额占全部合伙额多的合伙人意见处理,但要保护其他合伙人的利益。
(56) In case the partners collude with each other to evade the debts of the partnership, they shall, in addition to being ordered to undertake the liability for paying off the debts, be punished in accordance with the provisions of paragraph 3 of Article 134 of the General Principles of the Civil Law.
 56.合伙人互相串通逃避合伙债务的,除应令其承担清偿责任外,还可以按照民法通则一百三十四条第三款的规定处理。
(57) The "liabilities for paying off debts with the partners' property in proportion to their respective contributions to the investment" as prescribed in paragraph 1, Article 35 of the General Principles of the Civil Law shall mean that if a partner contributes with the individual property, he shall undertake liabilities with his own property; if a partner makes contributions by using the common property of the his family, he shall undertake liabilities with the common property of his family; if a partner makes contributions with individual property, and the surplus distribution income of the partnership is used for the living of the family members, he shall undertake liabilities with his individual property first, and then undertake liabilities with the common property of the family for the insufficient part.
......
 57.民法通则三十五条第一款中关于“以各自的财产承担清偿责任”,是指合伙人以个人财产出资的,以合伙人的个人财产承担;合伙人以其家庭共有财产出资的,以其家庭共有财产承担;合伙人以个人财产出资,合伙的盈余分配所得用于其家庭成员生活的,应先以合伙人的个人财产承担,不足部分以合伙人的家庭共有财产承担。
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