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Regulations
of Shenzhen Special Economic Zone On
Standard Contract
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(Adopted
at the twenty-fourth meeting of the Second Session of Standing
Committee of Shenzhen Municipal
People' s Congress on July 2,
1998)
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Chapter¢ñ
General Provision
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Article
1 These
regulations are formulated in order to maintain the economic
order of Shenzhen Special Economic
Zone (hereinafter referred to
as "Special Zone" ) and prevent abusing clauses in standard
contract
to obtain the unjust interests.
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Article 2 A
"Standard
Contract" in these regulations means a contract that concluded
by one of the parties
(the users) and an unparticular person
with the contract wording drafted in advance.
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The
Specific Counseling Clause, which revised on the agreement by
both parties to the contract,
shall be adopted in prior to
settle the disputes concerned with standard contract.
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Article 3 These
regulations shall be adopted to the standard contracts concluded
or performed in Special Zone,
unless provided in laws or
administrative regulations.
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Article 4
The conclusion and performance of the standard contract shall
abide by the principles of fairness,
honesty and credibility,
making compensation for equal value.
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Article
5 Where
there are not less than two kinds of interpretation to a clause
of the standard contract,
an interpretation favorable to the
counterpart shall be preferred.
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Chapter
¢ò Conclusion
of Standard Contract
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Article
6 The
standard contract shall be concluded in written form, but the
special contract forms such as
the contracts of transportation,
postal telegram and lottery ticket ¡¢raffle
ticket approved to issue by the state is excluded. The written
forms mean the forms which
is able to show the described content
visibly, such as a written contractual agreement, faxes and
Internet.
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If
the certificates cannot contain all the terms of the standard
contract when the parties establish
contractual relationship in
form of simple certificates (ticket, electronic purchasing card,
etc.),
the users shall separately offer the explanatory
documents that including all the terms besides the certificates.
But if there is difficulty to fulfill, the users are liable to
request the other party to note
the exemption or restriction of
their liability in reasonable ways, and shall illustrate the
containing
of the term according to the requirement of the
counterpart.
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Article
7 A
standard contract concluded in written shall contain the
following main clauses:
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(1)
Title or name and domicile of the parties;
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(2)
Varieties of the contract object;
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(3)
Quantity and quality;
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(4)
Price or remuneration;
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(5)
Time limit, place and the method of the performance;
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(6)
Methods to settle disputes and liability for breach of contract;
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(7)
When and where the contract is concluded;
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(8)
Other terms shall be agreed by the parties.
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Article
8 If it
is uncertain of the provisions of the main terms on quality ¡¢quantity
and price etc , the parties may agree upon the supplementary
terms.; if no agreement is
to be reached, the terms shall be
determined according to the context of the relevant contract
clauses or by transaction practices; if it still fails to be
determined, provisions of relevant laws and regulations
or the
unite standards stipulated by the relevant departments or trade
associations shall be adopted.
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Article
9 The
contract is established when it is signed by the parties unless
examination and approval is
needed according to law.
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Article
10 The
service promise made in public by the user in written or through
mass media without contract
form shall be part of the contract
automatically. But the liability that the user imposed to the
counterpart in the service promise shall not be part of the
contract without the written consent of the counterpart.
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The
user shall be liable for breach of contract if he disobeys the
service promise |
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Article 11 Written
introduction
or illustration of the products and services offered by the user
beyond the standard
contract shall be part of the standard
contract, but advisement and propaganda is not included.
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Article 12 The
user shall not refuse to conclude standard contract with any
other qualified party.
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Article 13 Where
there are strict requirement to qualification of the counterpart according to
laws or regulations, the user is liable to introduce
the
specific qualification requirement to the counterpart; and the
counterpart is liable to submit
the certification about
identity, age etc.
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Article 14
The administrative offices, trade associations or chambers of
commerce may draft directory model
text as the reference to the
parties, but shall not compel the parties to use the contract,
unless
provided in laws and regulations.
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Chapter ¢ó
Validity of Standard Contracts
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Article
15 When the contract is concluded, the parties shall perform
their obligations
thoroughly according to the terms of the contract. Neither party
shall unilaterally
modify or rescind the contract.
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Article
16 A standard contract with any of following circumstances
shall be null and void:
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(1)
Without handling the procedure of approval and registration in
violation of laws and regulations;
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(2)
Concluded by a person of no civil capacity for civil conduct;
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(3)
Concluded by a person with limited capacity for civil conduct,
which is not appropriate to his
age and intellect;
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(4) Concluded by a person with no power of agency in
other person' s name and without retroactive recognization by
the principal;
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(5) Concluded through the use of fraud or coercion.
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Article
17 It
shall be null and void if
the following clauses are found in a standard contract:
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(1)
Exempting the user from bearing the basic obligations of the
contract; but except in case of
force majesture;
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(2)
Exempting or restricting the user' s liability of compensation
which he shall bear in case of
breaching the contract with
fault;
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(3)
Exempting or restricting the user' s legal responsibility he
shall undertake caused by his fault
which results in death or
personal injury of the other party;
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(4)
Stipulating that the counterpart has no right to modify or
rescind the contract;
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(5)
Stipulating that the counterpart has no right to refuse
performing the contract when the price
of the products or
services offered by the user is at an unreasonable substantial
rise;
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(6)
Stipulating that the counterpart' s liability which shall be
borne for breach of contract is
not equal to that of the
user' s;
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(7)
Prohibiting or restricting the counterpart from enforcing the
right of lien;
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(8)
Exempting the counterpart' s right to claim when he bears
damages caused by the products or
services supplied by the user;
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(9)
Exempting or restricting the user' s liability of guarantee or
repair to his products or service;
or shortening the legal
period of guarantee that the user shall undertake to his
product;
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(10)
Stipulating that only the user has right to interpret the
contract;
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(11)
Transferring the burden of proof which shall be borne by the
user to the counterpart;
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(12)
The clause, unknown to the counterpart resulting from the
user' s failing to perform his liability
of prompting in
violation of Article 6(2), that exempts or restricts the use' s
responsibility,
the parties do not note the other party in
concluding violating item 2, clause 6 of the regulation, and the
terms that is unknown to the other party exempt or restrict
the parties' (users' ) responsibility;
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(13)
Stipulating that the counterpart has no right to bring their
disputes to the people' s court
or an arbitration institution.
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Article
18
A clause in a standard contract with any of the following
circumstances shall be revoked:
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(1)
Requesting the counterpart to perform the contractual
obligations unconditionally in violation
the principle of
fairness;
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(2)
Stipulating that the counterpart shall pay extra fixed charges
in addition to the service fees
when he takes advantage of the
service the user offered;
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(3)
Permitting the users to delay performance of the contract in an
uncertain period;
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(4)
Stipulating that the counterpart shall pay the user breach of
contract damages even if he modifies
or rescinds the contract
according to law;
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(5)
Stipulating that the counterpart' s liability for compensation
may exceed the actual damages
when the contract is rescinded;
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(6)
Permitting the user to transfer his rights or obligations to a
third party unilaterally;
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(7)
Stipulating that the counterpart shall not dissent to the
products or services offered by the
user;
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(8)
Stipulating that the user may be exempt form the liability of
informing the counterpart when
there is emergency that is
unfavorable to the counterpart.
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Article
19 The
parties to the contract may apply to the people' s court or an
arbitration institution for confirming
the invalidity of the
standard contract within one year since the establishment of the
contract,
and shall state corresponding reason while applying.
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Article 20
If one party deems that there is revocable or invalid clause in
the contract, he may request the
people' s court or an
arbitration institution in written to modify or revoke it, and
shall state
corresponding reason while applying.
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Article
21 An
invalid standard contract shall be null and void ever from the
very beginning. If part of a standard
contract is revoked or
null and void without affecting the validity of the other parts,
the other
parts shall still be valid.
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If
a standard contract is null and void, it shall not affect the
validity of the dispute settlement
clause in the contract.
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Article
22 The
property acquired as a result of the performance of a contract
shall be returned after the standard
contract is confirmed to be
null and void. The party at fault shall compensate the other
party
for actual losses incurred as a result thereform.
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Chapter ¢ô
Performance of the Standard Contracts
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and Liability for Breach of Contracts
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Article
23 The
parties may agree in the standard contract that a third party
performs the obligations to the
counterpart .The user shall be
liable to the losses caused by the third party performing the
contract
inadequately. If the third party refuses to perform,
the user shall perform the contract.
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Article
24
One party may suspend its performance of the contract if the
other party who shall render its performance
first, according to
the terms of a contract or trade usage, has not rendered its
performance.
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Article
25
The users shall inform the other party on time if they, in order
to avoid causing loss to the other
party, fail to perform the
contract because of technical questions.
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The parties shall,
excluding force majeure, inform the other party in a reasonable
way and request
the other party to modify relevant terms, if
performance of the former contract is dramatically unfair to the
users, which results from the great changes of the objective
circumstances that are unforeseeable,
unavoidable or
insurmountable by the users. And if the other party confuses to
modify the contract,
the users may terminate performance of the
contract.
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Article 26 The
parties may agree on the breach of contract damages one should
bear in light of the breach.
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Liquidated
damages shall be considered as compensation for losses resulting
form the breach of contract.
The parties may request the
people' s court or an arbitration institution to increase or
reduce
the liquidated damages, if the liquidated damages are
excessively higher or lower than the losses caused by breach
of
the contract. The parties may request the people' s court or an
arbitration institution to make
a discretionary reduction, if
there is no losses as a result and it is obviously unreasonable
to
pay the breach of contract damages according to the terms of
a contract.
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Article
27
Deposit may be agreed in the standard contract, but the amount
of the deposit shall not exceed
20 percent of the montary amount
of contract object.
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Chapter ¢õ
Supplementary Provisions |
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Article
28
Article 17 (2) of these regulations shall not be adopted to the
postal telegram contract and lottery
contract ratified by the
State.
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Article 29
These regulations shall take effect as the day of October
1,1998.
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(Translated by Xu Lingling) |
