最高人民法院关于适用《中华人民共和国民法典》总则编若干问题的解释 Promulgation Date: 2022-2-24 Title: 最高人民法院关于适用《中华人民共和国民法典》总则编若干问题的解释 Document Number:法释〔2022〕6号 Expiration date: Promulgating Entities: Supreme People's Court Source of text: https://www.court.gov.cn/fabu-xiangqing-347221.html
I. General Provisions
Article 1: Where there are provisions on civil relations in Parts 2 to 7 of the Civil Code, the people's courts are to directly apply those provisions; Where there are no such provisions in Parts 2 to 7 of the Civil Code, the provisions of Part 1 of the Civil Code apply, except where they cannot be applied due to their nature.
Where, for the same civil relationship, the provisions in other civil laws are a refinement of the corresponding provisions in the Civil Code, the provisions of those civil laws shall apply. Where the Civil Code provides for the application of other laws, those laws are to apply.
Where the Civil Code and other laws do not have specific provisions on civil relationships, the provisions of the Civil Code relating to fundamental principles may be followed.
Article 2: Popular customs, common practices, and so forth that are generally observed by ordinary people when engaging in civil activities over a long period of time within a certain region or industry, can be identified as customs as provided for in Article 10 of the Civil Code.
Where parties argue to apply custom, they shall provide evidence on the custom and its specific content; and when necessary, the people's courts may clarify in accordance with their authority.
The application of custom must not be contrary to the Core Socialist Values, and must not go against public order and good custom.
Article 3: The people's courts may make findings of 'abuse of civil rights' as used in Civil Code article 132, based on the target, purpose, time, and method of the exercise of the rights, and the extent to which it caused an imbalance of interests between the parties.
Where the actor's primary purpose in exercising civil rights is to harm national interests, the societal public interest, or the lawful rights and interests of others, the people's courts shall find that it constitutes an abuse of civil rights.
Where an abuse of civil rights is established, the people's courts shall find that the abusive conduct does have legal effect. Where the abuse of civil rights causes harm, it is to be addressed in accordance with Part 7 of the Civil Code and other relevant provisions.
II. Capacity for Civil Rights and Capacity for Civil Action
Article 4: Where parents claim rights as the legal representatives of a fetus before it is delivered, Involving the protection of fetal interests such as inheritance and the acceptance of gifts, the people's courts are to support it in accordance with law.
Article 5: Whether the civil juristic acts carried out by persons with limited civil capacity correspond with their age, cognition, and mental health status, may be determined by people's courts on the basis of the degree of connections between the conduct and the person's life, whether the persons cognitive and mental health status allowed them to understand the action and foresee its consequences, as well as factors such as the target, volume, price, or remuneration.
Article 6: People's courts' determinations of guardianship ability shall be based on their age, physical and mental health status, economic conditions, and other such factors; determinations on the guardianship ability of organizations shall be based on factors such as their qualifications, credit, and property status.
Article 7: Where guardians who are the parents of their charges designate guardians in their wills, but the person designated does not agree to serve as a guardian when the will takes effect, the people's courts shall apply articles 27 and 28 of the civil code to designate a guardian.
Where the parents are the guardians of a minor, and one of the parents designates a guardian in their will, but the other parent still has the capacity for guardianship when the will takes effect, and the parties have a dispute over the determination of the guardian, the people's courts shall apply the provisions of the first paragraph of article 27 to determine a guardian.
Article 8: Where minors' parents have concluded an agreement with others who possess guardianship credentials in accordance with law, agreeing to relieve the parents of guardianship duties despite their having the capacity for guardianship, the people's courts are not to support it. Where the agreement provides that the person with guardianship credentials is to serve as guardian when the parents have lost the capacity for guardianship, the people's courts will support it in accordance with law.
Where based on article 30 of the civil code persons who have guardianship credentials in accordance law make an agreement among themselves to have persons jointly serve as the guardians who are in different order of succession as provided in the second paragraph of article 27 and in article 28 of the civil code, or to have a person later in the succession act as guardian, the people's courts will support in accordance with law.
Article 9: When the people's courts designate guardians based on article 31 paragraph 2 and article 36 paragraph 1 of the Civil Code, they shall respect the true wishes of the person who is the charge, and designate a guardian in accordance with the principle of the best interests of the charge, specifically considering the following factors:
(1) The degree of closeness with the charge's life and emotional connections.
(2) Their place in the order of succession for guardianship among those who possess guardianship credentials;
(3) Whether they have committed violations or crimes, or have other such situations that are not conducive to performing guardianship duties;
(4) The capacity, willingness, and character of those who have guardianship credentials in accordance with law.
The people's courts shall normally designate one person as guardian, but where it would be more in the best interest of the charge to have multiple people jointly serving as guardians they may also designate more people.
Article 10: Where parties are not satisfied with a designation by a residents' committee, villagers' committee or civil affairs department, and apply to the people's courts for the designation of a guardian within 30 days of receiving a designation notice, and after trial, the people's courts find that there is nothing improper in the designation, they are to make a ruling to reject the appeal in accordance with law; where they find that the designation is improper, they are to make a judgment to revoke the designation and separately designate a guardian.
Where the relevant parties submit an appeal later than 30 days after receiving the designation notice, the people's courts shall handle it as a modification of guardianship.
Article 11: Where after adults with full civil capacity have concluded written agreements with others in accordance with article 33 of the Civil Code to determine their own guardian in advance, and either party to the agreement requests to release the agreement before the adult in question has lost or partially lost their civil capacity, the people's courts will support it accordance with law. Where the guardian designated in the agreement requests to be released from the agreement after the adult in question has lost full or partial civil capacity and does not have a legitimate cause, the people's courts are not to support it.
Where after the adult in question has lost or partially lost their civil capacity, the guardian designated in the agreement has any of the circumstances provided for in the first paragraph of article 36 of the Civil Code, and the persons or organizations provided for in the second paragraph of that article apply to have their guardianship credentials revoked, the people's courts are to support it in accordance with law.
Article 12: Where there is a disagreement between the guardian and others with guardianship credentials in accordance with law over whether the guardian has the circumstances that items (2) and (4) of the first paragraph of article 39 provide shall terminate the guardianship relationship, and apply for a modification of guardianship, the people's court shall accept it in accordance with law. Where after trial, it is found that the grounds are sustained, the people's courts are to support it in accordance with law.
Where a lawfully designated guardian makes an agreement with others who possess guardianship credentials to change the guardian, the people's courts shall respect the true wishes of the ward, and make a judgment in accordance with the principle of the best interest of the ward.
Article 13: Where guardians cannot complete the performance of their guardianship duties for a certain period for reasons such as illness or travel for work, and entrust the performance of all or some guardianship duties to another person, and a party argues that the entrusted person is the guardian as a result of this, the people's courts are not to support it.
IV. Pronouncements that a Person is Missing or Deceased
Article 14: When people's courts hear cases for pronouncement that a person is missing, the following persons shall be found to be interested parties as provided by Civil Code article 40:
(1) The close relatives of the subject of the application;
(2) Relatives that have rights to inheritence from the subject of the application in accordance with Civil Code articles 1128 and 1129;
(3) Civil entities with relationships to the subject of the application through civil rights and obligations such as creditors, debtors, and partners, except where not applying for a pronouncement that a person is missing would not impact their exercise of rights or performance of obligations.
Article 15: Where the custodian of the missing person's property requests that the missing person's debtors repay the debts, the people's courts shall list the property custodian as the plaintiff.
Where a creditor files a lawsuit requesting that the custodian of a missing person's property pay the debts and other expenses owed by the missing person, the people's court shall list the property custodian as the defendant. Where the claim of the creditor's lawsuit is found to be sustained through trial, the people's court shall order the property custodian to pay the debts and other expenses owed by the missing person from the property of the missing person.
Article 16: When people's courts hear a case for pronouncement that a persons is deceased, the spouse, parents, and children of the subject of the application, as well as relatives that have rights to inheritance from the subject of the application in accordance with Civil Code article 1129, shall be found to be interested parties as provided by Civil Code article 46.
In any of the following situations are, the subject of the application's other relatives, as well as relatives with a right to inheritance from the subject of the application in accordance with Civil Code article 1128 shall be found to be interested parties as provided in Civil Code article 46:
(1) The subject of the application's spouse, parents, and children are already deceased or cannot be found;
(2) Where corresponding rights and interests can not be protected without applying for a pronouncement of death.
Civil entities such as the subject of the application's creditors, debtors, and partners cannot be identified as interested parties as provided in Article 46 of the Civil Code, except for those who cannot protect their corresponding lawful rights and interests without applying for a declaration of death.
Article 17: Where natural persons disappear during time of war, the provisions of the first paragraph of Civil Code article 46 apply to the timing of applications by interested parties for a pronouncement of death, calculated from the date on which the war ends or the date determined as the date of disappearance by the relevant organs.
V. Civil juristic acts
Article 18: Where parties do not employ written or oral methods but their actions themselves indicate that they have made an expression of intent, and the requirements for establishing civil juristic acts are met, the people's courts may find that it is a civil juristic act carried out employing other methods in accordance with Civil Code article 135.
Article 19: Where the actor had a misunderstanding such as on the nature of the conduct, the other party, or the type, quality, price, or quantity of the target items, and if the normal understanding is that absent that misunderstanding they would not have made the expression of intent, the people's courts may find that it is a major misunderstanding as provided in Civil Code 147.
Where the actor can prove that a major misunderstanding existed in the civil juristic acts they carried out, and requests to revoke that civil juristic act, the people's courts are to support it in accordance with law; except where the actor has no right to request a revocation, based on transaction customs and so forth.
Article 20: Where an actor requests to revoke civil juristic acts on the grounds that a third party incorrectly conveyed their expression of intent, apply the provisions of article 19 this Interpretation.
Article 21: Where notice of fake circumstances is intentionally given, or where a person with an obligation to inform conceals the truth, causing a party to make an expression of intent founded on a misperception, the people's courts may find it to to be fraud as used in Civil Code articles 148 and 149.
Article 22: Where expressions of intent are forced through fear by threatening to cause harm to the rights in person and property of a natural person or their relatives, as well as their other lawful rights and interests, or to cause harm to a legal person's or unincorporated organization's rights and interests such as in their name, reputation, or property, the people's courts may find it to be coercion as provided for in article 150 of the Civil Code.
Article 23: Where a civil juristic act is not established and parties request the return of their assets, compensation of price differences, or compensation of losses, apply the provisions of Civil Code article 157 by reference.
Article 24: Where the conditions put on civil juristic acts cannot occur, and the parties make them a condition of the agreement taking effect, the people's courts shall find the civil juristic acts are not effective; where the parties make them a condition for lifting the agreement, they shall find that no conditions are attached and determine whether the civil juristic acts are effective in accordance with the Civil Code and relevant laws and administrative regulations.
Article 25: Where multiple agents jointly exercise agency authority and one or more of them exercise the agency authority of their own accord without consulting with the other agents, it is to be addressed in accordance with articles 171 and 172 of the Civil Code.
Article 26: Where, as a result of special circumstances such as illness, interruptions in communication, or disease prevention and control, agents cannot handle agency matters themselves and also cannot promptly contact the principal they represent, and harm could be caused or expanded to the principal's rights and interests if the agency is not promptly transferred to a third person, the people's courts shall find that it is an urgent situation as provided for in article 169 of the Civil Code.
Article 27: Where acts of unauthorized agency are not ratified, and the counterpart requests that the actor fulfill debts or compensate losses, the actor bears the burden of presenting evidence showing that the counterpart knew or should have known that the actor had no authority to act as an agent. Where the actor cannot prove this, the people's courts are to support the counterpart's corresponding demands; where the actor can prove it, the people's courts shall determine the responsibility of the actor and the counterpart in accordance with their respective fault.
Article 28: Where the following requirements are concurrently met, the people's courts may find it to be grounds for a party believing an actor had authority as an agent in accordance with article 172 of the Civil Code:
(1) There was the appearance of agency;
(2) The counterpart didn't know that the actor did not have authority as an agent, and has no fault.
Where this contention over whether an expression of agency was established, the counterpart shall bear the burden of presenting evidence showing that item (1) in the preceding paragraph applies to the unauthorized agency; the principal shall have the burden of presenting evidence that item (2) does not apply.
Article 29: Where legal representatives or principals ratify an expression of intent to the counterpart based on Civil Code articles 145 and 157, the people's courts shall hold that the ratification is the time at which the expression of intent became effective in accordance with Civil Code article 137.
VII. Civil Liability
Article 30: Where acts that are taken in order to avoid illegal harm that is being currently carried out to the national interest, societal public interest, or the rights of oneself or other others in their persons or property, as well as other lawful rights and interests, and are taken to stop the person carrying out the illegal harm, it may be found to be legitimate defense as provided for in article 181 of the Civil Code.
Article 31: The people's courts shall judge whether legitimate defense exceeded the necessary limits by comprehensively considering factors such as the nature, methods, force, and extent of the danger of the illegal harm, and the timing, methods, force, and harmful consequences of the defense.
Where through trial it is found that the legitimate defense did not exceed necessary limits, the people's courts shall that the legitimate defender does not bear responsibility. Where legitimate defense exceeds necessary limits, the people's courts shall find that the legitimate defender bears partial responsibility for the undue harms caused, but where the person who carried out the encroachment requests that the legitimate defender bears full responsibility, the people's courts are not to support it.
Where the person who carried out the encroachment cannot prove that the defensive action caused undue harm, but only argues that the legitimate defender's defense was excessive in that the methods and force employed were not equivalent to the illegal encroachment, the people's courts are not to support it.
Article 32: Where acts are taken as a last resort to avoid immediate danger that is currently occurring to the national interest, societal public interest, or the rights of oneself or other others in their persons or property, as well as other lawful rights and interests, and are taken to stop the person carrying out the illegal harm, it may be found to be necessity as provided for in article 182 of the Civil Code.
Article 33: The people's courts shall judge whether acts of necessity exceeded the necessary limits by comprehensively considering factors such as the nature and urgency of the danger, the rights being protected by the acts of necessity, and the harmful consequences resulting from it.
Where through trial it is found that the measures employed as necessity were not improper and did not exceed the necessary limits, the people's courts shall find that the party acting in necessity does not bear responsibility. Where it is found that the measures employed out of necessity were improper or exceeded necessary limits, the people's courts shall determine the corresponding liability of the person acting out of necessity based on the extent of their fault, the extent to which the acts taken in necessity contributed to the undue harm, and whether the person taking acts out of necessity is the beneficiary.
Article 34: Where persons who injured themselves when protecting the civil rights and interests of others request that the beneficiary give appropriate compensation in accordance with the provisions of Article 183 of the Civil Code, the people's courts may determine the amount of compensation borne by the beneficiary based on factors such as the victim's losses and compensation received, the amount of benefit to the beneficiary, and their economic condition.
VII. Statute of limitations
Article 35: The Civil Code provisions on suspension and interruption may be applied to the 3-year statute of limitations for litigation provided for in the first paragraph of Civil Code article 188, but the provisions on extensions are not to be applied. The provisions on suspension and interruption do not apply to the 20 year period provided in the second paragraph of that article.
Article 36: Where the rights of persons who lack or have limited civil capacity are harmed, the statutes of limitations for litigation are calculated from the day on which their legal representative learns or should have known of the harm to the rights and the obligor, except where otherwise provided by law.
Article 37: Where the rights and interests of persons who lack or have limited civil capacity are harmed by their former legal representative, and the relevant civil entities only know or should have known of the harm after they gain or recover full civil capacity or end the former legal representation and designate a new legal representative, the statute of limitations for related claims is to be calculated by applying the second paragraph of Civil Code article 188 and article 36 of this Interpretation.
Article 38: Where after the statute of limitations for litigation is interrupted based on the provisions of Article 195 of the Civil Code, the reasons for the interruption specified in Article 195 occur again within the new limitations period, the limitations period may be found to be interrupted again.
Where the rights holder submits a request for performance to the obligor's agent, property custodian, or estate manager, it may be found to be a suspension of the statute of limitations for litigation in accordance with article 195 of the Civil Code.
IX. Supplemental Provisions
Article 39: This interpretation will take effect from March 1, 2022.
This interpretation applies to civil cases brought on by law and facts from after the implementation of the Civil Code, or that did have not completed trial by the time this interpretation takes effect; this interpretation does not apply where the final judgment has been made before its implementation, and a party applies for retrial or a decision to retrial is made in accordance with trial supervision procedures.