A report delivered at the Second Session of the Ninth National People's Congress on March 9, 1999 in Beijing

1999年3月9日北京 第九届全国人民代表大会第二次会议上提交报告

1. The Scope of Application

The Draft Contract law stipulates that a contract means an agreement whereby the subjects with equal status, that is, natural persons, legal persons and other organizations, establish, alter or terminate civil right - creating an obligatory relationship between them. This provision is made in accordance with the General Principles of the Civil Law: First, what the contact applies to is civil relationship between subjects with equal status. The administrative activities of the government to maintain economic order according to law come under the category of administrative relationship, not civil relationship and are therefore governed by administrative laws, not by the contract law; the internal managerial relationships of legal persons and other organizations are governed by laws on companies or enterprises, not by the contract law, either. Secondly, the contract law mainly governs the economic and trade relationship between legal persons and other organizations, at the same time including the contractual-legal relationship arising from marriage, adoption, guardianship, etc. are not governed by the contract law. Compared with that of the three existing contract laws, the scope of application of the Draft Contract Law is appropriately enlarged.

适用范围

合同法草案规定，合同是指处于平等地位的自然人、法人、其它组织之 间建立、变更、终止民事权利和义务关系的协议。这种规定与民法通则是一 致的。第一，合同法适用于处理平等主体之间的民事关系。政府依法维持经 济秩序的管理活动，属于行政范畴，不是民事关系，因此受行政法律的支配， 而不受合同法的支配，法人、其它组织的内部管理关系，受公司法或企业法 的支配，也不受合同法支配。第二，合同法主要处理法人和其它组织之间的 经济贸易关系，同时包括婚姻、收养、监护等的合法关系，不受合同法支配。 与其它三部现存合同法相比，合同法草案规定的适用范围有了适当扩大。

2. The Basic Principles

The basic principles of the Contract Law provided for the Draft Contract Law are as follow: First, equality and voluntariness. With equal legal status, the parties to contract enjoy according to law the right to conclude a contract voluntarily. No party may impose his own will on another and no unit or individual may illegally interfere. Secondly, fairness, honesty and good faith. Both parties shall observe the principle of fairness in determining their rights and obligations and shall comply with the principles of honesty and good faith in exercising their right and performing their duties. Thirdly, observation of law. In concluding and performing a contract, the parties shall observe the law and administrative regulations, respect social ethics and they may not disrupt public and economic order or impair public interests.

基本原则

合同法草案对合同法基本原则的规定是：第一，平等、自愿。合同当事人的法律地位平等，依法享有自愿订立合同的权利，一方不得将自己的意志 强加给另一方，任何单位和个人不得非法干预。第二，公平、诚实、守信。当事人应当遵循公平的原则确定双方的权利和义务，在行使权利、履行义务 时，应当遵循诚实、守信的原则。第三，守法。当事人订立、履行合同，应 当遵守法律、行政法规，尊重社会公德，不得扰乱社会经济秩序，损害公众 利益。

The principle of voluntariness embodies the fundamental characteristics of civil activities and is therefore the unique principle of civil legal relationship that distinguishes it from administrative and criminal legal relationship, and it is also the objective requirement for developing the socialist market economy. The parties involved have the right to conclude a contract according to their own will. However, they shall exercise this right in accordance with law. Both the contents of the contract and the procedures for concluding it shall be in conformity with the law and administrative regulation. The contract concluded in violation of the compulsory provisions of the law and administrative regulations is invalid. If the law or administrative regulations provide that a contract shall take effect upon going through such procedures as approval or registration, such provisions shall be observed. Where a mandatory task is assigned or a procurement order is given by the State in light of need, the legal persons or other organizations concerned shall conclude a contract on the basis of the rights and obligations provided for in relevant laws and regulations.

自愿原则体现了民事活动的基本特征，是民事法律关系区别于行政法律关系、刑事法律关系特有的原则，也是发展社会主义市场经济的客观要求。 当事人有权按照自己的意愿订立合同，但是，应当依法行使这项权利，包括 订立合同的内容和程序都应当遵守法律、行政法规。违反法律、行政法规的 强制性规定的合同无效。法律、行政法规规定应当办理批准、登记等手续生 效的，依照其规定。国家根据需要下达指令性任务或者国家订货任务的，有 关法人、其它组织之间应当依照有关法律、行政法规规定的权利和义务订立 合同。