Law of the People's Republic of China on Application of Law in Foreign-related Civil Relations

President Order No. 36

28 Oct., 2010

The Law of the People's Republic of China on Application of Law in Foreign-related Civil Relations, which was adopted at the 17th Session of the Standing Committee of the Eleventh National People's Congress on 28 Oct., 2010, is hereby promulgated and shall come into effect as of 1 April, 2011.

President of the People's Republic of China: Hu Jintao

Law of the People's Republic of China on Application of Law in Foreign-related Civil Relations

(Adopted at the 17th Session of the Standing Committee of the Eleventh National People's Congress on 28 Oct., 2010)

Contents
Chapter I General Provisions
Chapter II Civil Entities
Chapter III Marriage and Family
Chapter IV Succession
Chapter V Property Rights
Chapter VI Obligations
Chapter VII Intellectual Property Rights
Chapter VIII Supplementary Provisions

Chapter I General Provisions

Article 1 The Law is formulated for the purpose of resolving problems in relation to the application of law in foreign-related civil relations, reasonably settling foreign-related civil disputes and protecting the legitimate rights and interests of the parties concerned.

Article 2 The application of law in foreign-related civil relations shall be determined in accordance with the Law. Where there are special stipulations in respect of the application of law in foreign-related civil relations in other laws, such stipulations shall prevail.
Where this Law and other laws do not contain any provision with respect to the application of law in a foreign-related civil relation, the law most closely associated with the foreign-related civil relation shall apply.

Article 3 The parties may expressly select the law applicable to a foreign-related civil relation in accordance with legal provisions.


Article 4 Where the law of the People's Republic of China contain mandatory provisions in relation to a foreign-related civil relation, such provisions shall apply.

Article 5 Where the application of a foreign law will undermine the social and public interests of the People's Republic of China, the relevant laws of the People's Republic of China shall prevail.

Article 6 Where a foreign-related civil relation is governed by the law of a foreign country, if different regions of this country are governed by different laws, the law of the region most closely associated with the foreign-related relation shall apply.

Article 7 Limitation of action involving a foreign-related civil relation shall be governed by a law that is applicable to such foreign-related civil relation.

Article 8 The nature of a foreign-related civil relation shall be determined in accordance with the law of the forum.

Article 9 Foreign laws applicable to foreign-related civil relations shall not include the law of a foreign country on the application of law.

Article 10 A foreign law applicable to a foreign-related civil relation shall be verified by a people's court, arbitration institution or administrative organ. Where the parties select the applicable law of a foreign county, they shall provide such law of the foreign country.
Where a foreign law is unable to be verified or has no relevant stipulations, the law of the People's Republic of China shall apply.

Chapter II Civil Entities

Article 11 The capacity for civil rights of a natural person shall be governed by the law of the place of habitual residence of such natural person.

Article 12 The capacity for civil conduct of a natural person shall be governed by law of the place of habitual residence of such natural person.
Where a natural person carries out a civil conduct, and the law of the place of habitual residence of such natural person provides that the person has no capacity for such civil conduct, but the law of the place where such natural person carries out such civil conduct provides that the person has capacity for such civil conduct, the latter shall prevail, except where marriage, family or succession is involved.

Article 13 Proclamation of the missing or death of a natural person shall be governed by the law of the place of habitual residence of such natural person.

Article 14 Matters concerning the capacity for civil rights or civil conduct, any institutions, or shareholders' rights and obligations of a legal person or its branches shall be governed by the law of the place of registration of such legal person.
Where a legal person's principal place of business is not consistent with its place of registration, the law of the principal place of business may apply. A legal person's place of habitual residence shall be deemed the principal place of business of such legal person.


Article 15 The content of the right of personality shall be governed by the law of the place of habitual residence of the rightholder.

Article 16 The act of agency shall be governed by the law of the place where the act of the agency takes place, but the civil relations between a principal and its agent shall be governed by the law of the place where the principal-agent relation is established.
The parties may select by agreement the law applicable to their principal-agent relationship.

Article 17 The parties may select by agreement the law applicable to a fiduciary relationship. Where the parties do not so select, the law of the place where the trust property is located or the law of the place where the fiduciary relationship is established shall apply.

Article 18 The parties may select by agreement the law applicable to arbitration agreements. Where the parties do not so select, the law of the place where the arbitration institution is located or the arbitration takes place shall apply.

Article 19 Where the law of a country of nationality shall apply pursuant to this Law, but athe natural person concerned has two or more nationalities, the law of the country where such person has habitual residence shall apply; where the said natural person has no habitual residence in any of the countries of nationality, the law of the country of nationality most closely associated with the natural person shall apply; problems concerning a natural person without a nationality or without a definite nationality shall be governed by laws of the place of habitual residence.

Article 20 Where the law of the habitual residence of a natural person shall apply pursuant to the Law, but the habitual residence of such person is uncertain, the law of the person's current residence shall apply.

Chapter III Marriage and Family

Article 21 Conditions for marriage shall be governed by the law of the place of common habitual residence of the parties to the marriage ; where there is no common habitual residence, the law of the common country of nationality of the parties shall apply; where there is no common nationality, and the marriage takes place in the place of habitual residence of either party or in the country of nationality of either party, the law of the place where the marital relationship is created shall apply.

Article 22 Marriage procedures performed in compliance with the law of the place where the marital relationship is created or the law of place of habitual residence or the law of country of nationality of either spouse, shall be valid.

Article 23 The personal relation of a married couple shall be governed by the law of the common place of habitual residence of the couple; where there is no common place of habitual residence, the law of their common country of nationality shall apply.

Article 24 A married couple may select by agreement the law of the place of habitual residence or the law of the country of nationality of either spouse or the law of the place where the main property of either spouse is located applicable to their marital property relations. Where the parties do not so select, the law of their common place of habitual residence shall apply; where there is no common place of habitual residence, the law of their common country of nationality shall apply.

Article 25 The personal and property relations between parents and their children shall be governed by the law of the place of their common place of habitual residence; where there is no common place of habitual residence, the law of the place of habitual residence of either party or the law of the country of nationality of either party, whichever is more in favor of protecting the rights of the weaker party, shall apply.

Article 26 The parties to a voluntary divorce may select by agreement the law of the place of habitual residence of either party or the law of the country of nationality of either party applicable to the divorce. Where the parties do not so select, the law of their common place of habitual residence shall apply; where there is no common place of habitual residence, the law of their common country of nationality shall apply; where the parties have no common nationality, the law of the place where the institution handling the divorce is located shall apply.

Article 27 Divorce by litigation shall be governed by the law of the forum.

Article 28 Adoption conditions and procedures shall be governed by the laws of the habitual residence of the adoptee and the adopter. The validity of an adoption shall be governed by the law of the habitual residence of the adopter; the dissolution of an adoptive relationship shall be governed by the law of the habitual residence of the adoptee or the law of the forum.

Article 29 A dependent relationship shall be governed by the law of the habitual residence of either party or the law of the country of nationality of either party, whichever is more in favor of protecting the rights of the dependent.

Article 30 Guardianship shall be governed by the law of the habitual residence of either party or the law of the country of nationality of either party, whichever is more in favor of protecting the rights of the ward.

Chapter IV Succession

Article 31 Statutory succession shall be governed by the law of the habitual residence of the deceased, but the statutory succession of a real estate property shall be governed by the law of the place where such real estate property is located.

Article 32 A will which is made in compliance with the law of the habitual residence or the law of the country of nationality of the testator or the law of the place where the act of testament is carried out in force at the time of making the will or the time of the death of the testator, shall be valid.

Article 33 The validity of a will shall be governed by the law of the habitual residence or the law of the country of nationality of the testator in force at the time of making the will or the time of death of the testator.

Article 34 Matters concerning the administration of estate shall be governed by the law of the place where the estate is located.

Article 35 The ownership of a heirless estate shall be governed by the law of the place where the estate is located in force at the time of the death of the decedent.

Chapter V Property Rights

Article 36 The property right of a real estate property shall be governed by the law of the place where the real estate property is located.

Article 37 The parties may select by agreement the law applicable to a movable property. Where the parties do not so select, the law of the place where the movable property is located shall apply.

Article 38 The parties may select by agreement the law applicable to the change of property right of a movable property in transit. Where the parties do not so select, the law of the shipping destination shall apply.

Article 39 Negotiable securities shall be governed by the law of the place where the right to the negotiable securities is realized or another law most closely associated with the negotiable securities.

Article 40 The pledge of rights shall be governed by the law of the place where the pledge is created.

Chapter VI Obligations

Article 41 The parties may select by agreement the law applicable to a contract. Where the parties do not so select, the law of the habitual residence of the party whose performance of contractual obligations can most reflect the characteristics of the contract or another law most closely associated with the contract shall apply.


Article 42 A consumer contract shall be governed by the law of the habitual residence of the consumer; where a consumer opt to apply the law of place where the goods or service is provided, or where the business operator is not engaged in relevant business activities in the place of habitual residence of the consumer, the law of the place the goods or service is provided shall apply.

Article 43 A labor contract shall be governed by the law of the place of work of the worker; where it is difficult to determine the place of work, the law of the principal place of business of the employer shall apply. A service outsourcing shall be governed by the law of the place where service is outsourced.

Article 44 Tort liability shall be governed by the law of the place where the tort occurs. Where the parties share a common place of habitual residence, the law of their common place of habitual residence shall apply. Where the parties reach an agreement on the application of law for the settlement of the tort after it occurs, such agreement shall apply.

Article 45 Product liability shall be governed by the law of the places of habitual residence of the infringed party; where the infringed party select by agreement the law of the principal place of business of the infringing party or the law of the place of injury, or, the infringing party is not engaged in relevant business activities in the place of habitual residence of the infringed party, the law of the principal place of business of the infringing party or the place of injury occurs shall apply.

Article 46 In case of infringement on personality rights including the right of name, portraiture, reputation and privacy via the Internet or other means, the law of the habitual residence of the infringed party shall apply.

Article 47 Unjust enrichment and agent of necessity shall be governed by the law selected by the parties by agreement. Where the parties do not so select, the law of their common place of habitual residence shall apply; where there is no common place of habitual residence, the law of the place where the unjust enrichment or agent of necessity takes place shall apply.

Chapter VII Intellectual Property Rights

Article 48 The ownership and content of intellectual property rights shall be governed by the law of the place where the protection of such intellectual property rights is requested.

Article 49 The parties may select by agreement the law applicable to the transfer and licensing of intellectual property rights. Where the parties do not so select, the provisions of this Law concerning contracts shall apply.

Article 50 Liability for infringement on intellectual property rights shall be governed by the law of the places where the protection of the same is requested. The parties may also select by agreement to apply the law of the forum after the infringement occurs.

Chapter VIII Supplementary Provisions

Article 51 Where Articles 146 and 147 of the General Rules of the Civil Law of the People's Republic of China and Article 36 of the Law of Succession of the People' Republic of China conflict with any provisions of this Law, such provisions of this Law shall prevail.

Article 52 This Law shall come into effect from 1 April, 2011.