Page 216 - 2021 White Paper
P. 216
1 White Paper on the Business Environment in China
registration institution, which leaves room for the certain risks, is damaged due to other participants’
establishment of a unified registration system for acts, it shall not request other participants to bear
mortgages and the right to pledge moveable tort liability, unless the other participants were
property. Second, it deletes the provision that willful or gross negligence in causing the damage60.
“a written contract shall be concluded”. Third, it
provides that the right to pledge shall apply the b. “Self-help” Behavior
rules of "no disposition without consent", which
is different from the rules for the disposal of The Civil Code provides that if any person whose
mortgaged property during the mortgage period58. lawful rights and interests are infringed, is unable,
The right to pledge refers to the right obtained under pressing conditions, to receive protection
by a creditor after a debtor or a third party has from the state authorities in a timely manner, and
pledged the following: (1) bills of exchange, its lawful rights and interests would be irreparably
promissory notes and cheques; (2) bonds and damaged unless measures will be immediately
certificates of deposit; (3) warehouse receipts and taken, such person may take reasonable measures,
bills of lading; (4) transferable shares of funds and such as distraining the property of the tortfeasor,
equity; (5) property rights in transferable exclusive necessary for protection of its own lawful rights
rights to use registered trademarks, patent rights, and interests, but it shall immediately request
copyrights and other intellectual property rights; the relevant state authorities to proceed61. This
(6) accounts receivable that are owned or will provisions in the Civil Code refers to self-help for
be owned; and (7) other property rights that can making up the insufficiency of relief provided by
be pledged pursuant to law and administrative the state authorities and protection of individual
regulations. interests. However, it is noticeable that, in civil
matters, self-help is limited to property, shall be
c. Renewal of the right to use land for made within a necessary scope, and one is then
residential construction required to apply to the relevant state authorities
to proceed.
China’s Civil Code provides principles on how
to deal with the expiration of the right to use c. Compensation for Psychological Injury
land for residential construction. “If the term of
the right to use land for residential construction The Civil Code provides that if any harm results
expires, it shall be automatically renewed. The from intentional or grossly negligent act by a
payment or reduction of renewal fees shall be tortfeasor to a specific object with personal
made in accordance with laws and administrative significance to a natural person, which has
regulations.”59 This allows for better continuity caused serious psychological injury to the victim
after the State Council officially put forward a bill of the tort, the victim shall have the right to
to amend the relevant laws. require compensation for psychological injury62.
In accordance with the pervious Tort Liability
4. Tort Liability Law, compensation is limited to the severe
psychological injury of other persons caused by
a. Rule of “Assumption of Risk” the infringer of such person’s personal rights and
interests. However, the Civil Code expands the
Based on the Tort Liability Law, the Civil Code scope of compensation for psychological injury,
further refines the principle of attribution of tort stating that one can also claim compensation for
liability and establishes the rule of “assumption the tort caused by a specific object resulting in
of risk”. The Civil Code specifies if the victim, who serious psychological injury. The previous judicial
voluntarily participates in cultural activities with interpretation also had relevant provisions that
a court shall accept a claim for compensation
58 Civil Code, Article 441 to Article 445 for a tort which causes loss or destruction of a
59 Civil Code, Article 359
60 Civil Code, Article 1176
61 Civil Code, Article 1177
62 Civil Code, Article 1183
216
registration institution, which leaves room for the certain risks, is damaged due to other participants’
establishment of a unified registration system for acts, it shall not request other participants to bear
mortgages and the right to pledge moveable tort liability, unless the other participants were
property. Second, it deletes the provision that willful or gross negligence in causing the damage60.
“a written contract shall be concluded”. Third, it
provides that the right to pledge shall apply the b. “Self-help” Behavior
rules of "no disposition without consent", which
is different from the rules for the disposal of The Civil Code provides that if any person whose
mortgaged property during the mortgage period58. lawful rights and interests are infringed, is unable,
The right to pledge refers to the right obtained under pressing conditions, to receive protection
by a creditor after a debtor or a third party has from the state authorities in a timely manner, and
pledged the following: (1) bills of exchange, its lawful rights and interests would be irreparably
promissory notes and cheques; (2) bonds and damaged unless measures will be immediately
certificates of deposit; (3) warehouse receipts and taken, such person may take reasonable measures,
bills of lading; (4) transferable shares of funds and such as distraining the property of the tortfeasor,
equity; (5) property rights in transferable exclusive necessary for protection of its own lawful rights
rights to use registered trademarks, patent rights, and interests, but it shall immediately request
copyrights and other intellectual property rights; the relevant state authorities to proceed61. This
(6) accounts receivable that are owned or will provisions in the Civil Code refers to self-help for
be owned; and (7) other property rights that can making up the insufficiency of relief provided by
be pledged pursuant to law and administrative the state authorities and protection of individual
regulations. interests. However, it is noticeable that, in civil
matters, self-help is limited to property, shall be
c. Renewal of the right to use land for made within a necessary scope, and one is then
residential construction required to apply to the relevant state authorities
to proceed.
China’s Civil Code provides principles on how
to deal with the expiration of the right to use c. Compensation for Psychological Injury
land for residential construction. “If the term of
the right to use land for residential construction The Civil Code provides that if any harm results
expires, it shall be automatically renewed. The from intentional or grossly negligent act by a
payment or reduction of renewal fees shall be tortfeasor to a specific object with personal
made in accordance with laws and administrative significance to a natural person, which has
regulations.”59 This allows for better continuity caused serious psychological injury to the victim
after the State Council officially put forward a bill of the tort, the victim shall have the right to
to amend the relevant laws. require compensation for psychological injury62.
In accordance with the pervious Tort Liability
4. Tort Liability Law, compensation is limited to the severe
psychological injury of other persons caused by
a. Rule of “Assumption of Risk” the infringer of such person’s personal rights and
interests. However, the Civil Code expands the
Based on the Tort Liability Law, the Civil Code scope of compensation for psychological injury,
further refines the principle of attribution of tort stating that one can also claim compensation for
liability and establishes the rule of “assumption the tort caused by a specific object resulting in
of risk”. The Civil Code specifies if the victim, who serious psychological injury. The previous judicial
voluntarily participates in cultural activities with interpretation also had relevant provisions that
a court shall accept a claim for compensation
58 Civil Code, Article 441 to Article 445 for a tort which causes loss or destruction of a
59 Civil Code, Article 359
60 Civil Code, Article 1176
61 Civil Code, Article 1177
62 Civil Code, Article 1183
216
