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MindMap Gallery Chapter 2 of CPA Economic Law Basic Civil Legal System
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Chapter 2 of CPA Economic Law Basic Civil Legal System
Regarding the mind map of the basic civil legal system in Chapter 2 of the CPA Economic Law, it summarizes the civil legal behavior system, agency system, statute of limitations system, etc.
Edited at 2024-02-18 10:40:42
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Chapter 2 of CPA Economic Law Basic Civil Legal System
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Chapter 2 Basic Civil Legal System
civil legal action system
The concept of civil legal action
Civil legal acts are acts by which civil subjects establish, change, and terminate civil legal relationships through expressions of intention.
Civil legal acts are behaviors with a purpose. The "purpose" here only refers to the legal consequences pursued by the parties when performing the civil legal acts, and does not include the motivation of the actor to perform the acts. This feature makes civil legal acts different from other legal facts. such as infringement
Classification of civil legal acts
Established based on the unanimous expression of intention of several parties
Unilateral civil legal acts
Established based on the expression of intention of one party
The right of revocation and ratification of civil legal acts whose validity is pending, the legal right of rescission, the exemption of debts, the abandonment of movable property, testamentary acts, and authorized acts in entrustment and agency
Civil legal actions of both parties
It is established due to the unanimous expression of intention between the two parties, such as a contract, whether it is a sales contract or a donation contract, it is a civil legal act of both parties; but the donation contract is a unilateral contract
Multi-party civil legal actions
Resolution is a typical multi-party civil legal act, which is different from a contract
The expression of intention of the parties to the resolution can be made by majority vote, and it is also binding on members who have not expressed their consent.
The expression of intention in the resolution is not only binding on the member who issued the expression, but also mainly on the legal person jointly represented by the expresser.
Whether the parties pay a certain price to each other
Paid civil legal actions
sales contract
Free civil legal actions
Donation behavior, free entrustment
Distinguish meaning
Determine the nature of the act. The law stipulates that certain civil legal acts must be paid or free.
When the validity of an act is determined and a paid civil legal act is obviously unfair, the injured party has the right to request the revocation of the act. However, there is no issue of unfairness in uncompensated civil legal acts.
Determine the liability of the perpetrator. Usually the civil liability for paid civil legal actions is heavier than that for unpaid civil legal actions.
When asserting the creditor's right of revocation, if it is a paid civil legal action, the creditor can exercise the right of revocation only if the counterparty of the debtor knows or should know it; if it is a free civil legal action, the subjective intention of the party does not need to be considered. Claim the right to rescind
Legal actions have different effects
burdensome behavior
A legal act that obligates one party to certain payment obligations relative to another party, and the obligee has the right to request performance.
This obligation to pay can be an act or an omission.
The act of burdening produces legal effects in terms of debt law
disciplinary action
Disposal is a civil legal act that directly results in changes in power and does not require the obligor to actively perform payment obligations.
Property rights behavior is a typical disposal behavior
Whether the establishment of a civil legal act must take a certain form or perform certain procedures
essential civil legal acts
It must take a certain form or perform certain procedures to be established, such as bill acts
Unnecessary civil legal actions
The law does not require a specific form. The parties can freely choose the form. The form of this type of civil legal act can be determined by the parties through negotiation, such as a sales contract.
relationship between civil legal acts
Main civil legal act
from civil legal acts
The parties enter into a loan contract, and in order to ensure the performance of the contract, a guarantee contract is entered into, in which the loan contract is the main contract and the guarantee contract is a subsidiary contract. The significance of distinguishing between primary civil legal acts and secondary civil legal acts is that the existence or failure of secondary civil legal acts is determined by the primary civil legal acts. If primary civil legal acts do not exist, secondary civil legal acts cannot exist.
Expression of meaning (core elements)
Unilateral civil legal acts
Expression of meaning without counterpart
effective upon completion
testamentary act
abandon chattels
There is an expression of intention from the relative
dialogue
Effective when its contents are known
non-dialogue
Effective when reaching the counterparty
In the process of making offers and commitments, granting agency rights, contract termination and other expressions of intention, the arrival principle is adopted.
If the expression of intention is in the form of a data message, if the counterparty designates a specific system to receive the data message, it will take effect when the data message enters the specific system; if no specific system is specified, the counterparty knows or should know that the data message will take effect when the data message enters its system. If the parties have any other agreement on the effective time of the expression of intention in the form of a data message, the agreement shall prevail.
Expressions of intention made in the form of announcements shall take effect when the announcement is issued.
The actor may express his intention expressly or implicitly. Silence can only be regarded as an expression of intention when there is a legal provision, an agreement between the parties, or it is consistent with the transaction habits between the parties.
The perpetrator may withdraw his expression of intention. The notice of withdrawing the expression of intention shall be issued before the expression of intention reaches the counterparty or at the same time as the expression of intention reaches the counterparty.
The effectiveness of civil legal acts
Establishment of civil legal acts
The establishment of a civil legal act must have three elements: subject, expression of intention, and subject matter.
Effectiveness of civil legal acts
material elements
The perpetrator has corresponding civil capacity
The perpetrator means the truth
Do not violate the mandatory provisions of laws and administrative regulations, and do not violate public order and good customs.
formal requirements
Civil legal acts may be in written form, oral form or other forms (such as presumption form, silent form); if laws, administrative regulations stipulate or the parties agree to use a specific form, the specific form shall be used.
The form of presumption means that the parties do not directly express their intention in written or oral form, but perform certain positive behaviors so that others can infer their intention.
Wang was shopping in a supermarket, and Wang's act of handing over currency to the salesperson can be inferred as Wang's intention to purchase goods.
The form of silence means that the actor does not express his intention with positive actions, but replaces his intention with negative inaction. According to the provisions of the Civil Code, silence can only be regarded as an expression of intention when there is a legal provision, an agreement between the parties, or it is consistent with the transaction habits between the parties.
Civil legal acts whose validity is yet to be determined
Classification
Civil legal acts that persons with limited capacity for civil conduct cannot independently perform
Civil legal acts performed by a person with limited capacity for civil legal acts that are solely for profit or that are commensurate with his or her age, intelligence, and mental health are valid; other civil legal acts performed by a person with limited capacity for civil legal acts are valid with the consent or ratification of the legal representative.
The counterparty may urge the legal representative to ratify it within 30 days from the date of receipt of the notice. If the legal representative fails to make any representation, it shall be deemed as a refusal to ratify. Before a civil legal act is ratified, a bona fide counterparty has the right to revoke it.
Chivalry has no authority to act as an agent
invalid civil legal act
All invalid civil legal acts
type
Civil legal acts independently performed by a person without capacity for civil conduct are invalid
Civil legal actions that violate public order and good customs are invalid
Civil legal actions in which the actor and counterparty maliciously collude to damage the legitimate rights and interests of others are invalid.
Civil legal acts carried out by the perpetrator and counterparty with false intentions are invalid
Civil legal acts that violate the mandatory provisions of laws and administrative regulations are invalid, except where the mandatory provisions do not render the civil legal acts invalid.
If a civil legal act violates the "validity norms" in the mandatory provisions of laws and administrative regulations, the civil legal act is invalid.
If a civil legal act violates the "managerial norms" in the mandatory provisions of laws and administrative regulations, it does not render the civil legal act invalid.
Legal Consequences
behavioral effectiveness
Invalid from the beginning
An invalid civil legal act has no legal binding force from the beginning of the act.
Of course it doesn't work
Regardless of whether the parties claim it, whether they know it, or whether it has been confirmed by the people's court or arbitration institution, the civil legal act is of course invalid.
Absolutely invalid
Invalid civil legal acts have absolutely no legal effect and cannot be corrected through the actions of the parties involved.
property disposal
Return the property and shall not return the compensation that should be discounted
Liability
The party at fault shall compensate the other party for the resulting losses; if both parties are at fault, they shall each bear corresponding responsibilities.
Partially invalid civil legal acts
"Civil Code" Contract Part - Some exemption clauses in the contract are invalid
Responsible for causing personal injury to the other party
If the other party’s property damage is caused intentionally or through gross negligence, the liability will not be exempted.
If part of a civil legal act is invalid, the validity of other parts will not be affected, and the other parts will still be valid.
revocable civil legal act
Differences from invalid civil legal acts
Different legal effects
A revocable civil legal act has taken effect before being revoked. Before being revoked, its legal effects can be against anyone except the person with the right to revoke (if it is not revoked, it is a valid act). An invalid civil legal act is of course legally invalid and has no legal effect from the beginning.
The subjects claiming rights are different
The revocation of a revocable civil legal act shall be applied for by the person with the right to revocation, and the People's Court shall not actively intervene. The confirmation of invalid civil legal acts does not depend on the will of the parties. The people's court or arbitration institution can proactively declare it invalid during litigation or arbitration proceedings.
Exercise time is different
There is no expulsion period limit for invalid actions; there is an expulsion period limit for revocable actions.
specific situation
major misunderstanding
There is a misunderstanding about the nature of the act, the other party or the variety, quality, specification, quantity, etc. of the subject matter. According to common understanding, if the misunderstanding had not occurred, the actor would not have made the corresponding expression of intention.
Zhang San bought a Dell laptop, but he was not familiar with the model and mistakenly thought model B was model A and bought it.
show fairness
One party takes advantage of the other party's distress, lack of judgment, etc., causing the rights and obligations between the parties to obviously violate the principle of fairness when the civil legal act is established.
Zhang San has an heirloom jade pendant. Zhang San does not know the value. Li Si is an expert in antiques. He offers to buy it at 1/10 of the market price. Zhang San enters into a sales contract with him.
Fraud
A civil legal act in which one party uses fraudulent means to cause the other party to perform a civil legal act contrary to his true intention
A third party commits a fraudulent act, causing one party to commit a civil legal act against his true intention, and the other party knows or should know about the fraudulent act
coercion
Coercion is threatening the personal or property safety of another person and forcing the other person to make untrue representations. Specifically: one party or a third party uses coercion to cause the other party to perform a civil legal act against his true intention.
Legal Consequences
Can be revoked
Subject of exercise of right of revocation
The party whose intention is untrue, including the party who has had a major misunderstanding, the party who has been harmed in showing fair behavior, the party who has been deceived or coerced
Period of exercise of the right of revocation (exclusion period)
The right to cancel shall be extinguished in any of the following circumstances:
The party who has major misunderstandings fails to exercise the right of revocation within 1 year from the date he knew or should have known the reasons for revocation.
The party is under duress and fails to exercise the right of revocation within 1 year from the date of termination of the coercion.
After the party knows the reasons for the right to rescind, he clearly expresses it or shows by his own behavior that he has given up the right to rescind.
If the party fails to exercise the right of revocation within 5 years from the date of the civil legal act, the right of revocation shall be extinguished.
Consequences of revocation
Once revoked, its property disposition (return of property, discount compensation) and liability for compensation are the same as those of an invalid act.
Conditions and deadlines for civil legal acts
Conditional civil legal acts
Requirements attached to conditions
It must be a fact that will happen in the future
Must be an uncertain fact
It must be a condition agreed upon by both parties, rather than a condition explicitly determined by law.
Conditions must be legal
A condition is a fact that may occur
Classification of conditions
For legal acts with deferred conditions, the deferred conditions are the "effectiveness conditions", and the legal act will only take effect when the conditions are met.
If it rains tomorrow, A will sell his umbrella to B
For legal acts with conditions for rescission, the rescission of a treaty is the "extinction condition". When the conditions are fulfilled, the act becomes invalid.
If A's son comes back from abroad, the house rented by A to B will be taken back
The rule of bad faith towards the parties
If the parties improperly prevent the fulfillment of the conditions for their own interests, the conditions shall be deemed to have been fulfilled; if the parties improperly facilitate the fulfillment of the conditions, the conditions shall be deemed to have not been fulfilled.
Civil legal acts with time limit
Classification
Legal acts with extension period (initial period)
This contract will take effect in one month
A legal act with a rescission period (expiration date)
This contract will terminate after one month
agency system
concept of agency
definition
Agency refers to a type of law in which an agent performs civil legal acts with a third party in the name of the principal within the authority of the agency, and the legal consequences arising therefrom are directly borne by the principal.
In accordance with the provisions of the law, the agreement of the parties or the nature of the civil legal act, civil legal acts that should be carried out by the person himself (such as making a will, registering a marriage, adopting children, etc.) shall not be represented by an agent.
The difference between agency and broker
The broker performs civil legal acts in his own name, while the agent performs civil legal acts in the name of the principal.
The legal consequences of the agency will be borne by the agent himself, and will then be transferred to others through other legal relationships (such as an agency contract); while the legal effects of the agency will be borne directly by the principal.
The commission must be a paid civil legal act, and the agency can be either paid or unpaid.
The difference between agency and conveyance
The task of communication is to faithfully convey the client's expression of intention. The conveyor does not express his or her intention, and the conveyor does not condition the conveyor on having the capacity for civil conduct.
An agent can independently express his or her intention to a third party within the agency authority, so the agent must have corresponding civil capacity.
Identity behaviors (such as marriage and adoption) must be performed by the person himself and cannot be represented by an agent; however, identity behaviors can use a conveyor to convey the intention.
agency
concept
Principal agency refers to an agency based on the expression of intention authorized by the agent.
The authorization is optional and can be in writing, or orally or in other ways.
The authorization act in the agency is a unilateral civil legal act, and the effect of authorization can be produced only by the expression of intention of the principal. The principal's authorized behavior can be performed either to the agent or to the counterparty, and both have the same effect.
Job authorization
Personnel who perform work tasks for a legal person or an unincorporated organization shall perform civil legal acts in the name of a legal person or an unincorporated organization on matters within the scope of their powers, which shall be effective against the legal person or unincorporated organization. Restrictions on the scope of authority of persons performing their work tasks by legal persons or unincorporated organizations shall not conflict with bona fide counterparts.
abuse of agency
Act as your own agent
An agent shall not perform civil legal acts with himself in the name of the principal, except with the consent or ratification of the principal.
Agent for both parties
An agent shall not perform civil legal acts in the name of the principal with other persons acting for him at the same time, except where both parties to the agent agree or ratify.
malicious collusion
If the agent and the counterparty collude maliciously and damage the legitimate rights and interests of the principal, the agent and the counterparty shall bear joint and several liability.
statute of limitations
Basic theory of statute of limitations
The concept of statute of limitations
When the statute of limitations expires, the obligor may raise a defense of non-performance of the obligation. After the expiration of the statute of limitations, if the obligor agrees to perform, he may not use the expiration of the statute of limitations as a defense; if the obligor has traveled voluntarily, he may not request return.
When the statute of limitations expires, the debtor acquires the right to defend, but the creditor's substantive rights are not extinguished.
If the right holder files a lawsuit after the statute of limitations has expired, the People's Court shall accept the case (the right to sue will not be lost). If the obligor raises a statute of limitations defense and the people's court finds that there is no reason for termination, interruption or extension, it will rule to reject the obligee's claim (the obligee loses the right to win the lawsuit), but the substantive rights of the obligee will not be extinguished.
If the obligor fails to raise the right of defense against the limitation of action, the people's court shall not explain the issue of limitation of action and actively apply the provisions of the limitation of action for adjudication.
If a party does not raise a statute of limitations defense during the first instance, and raises it during the second instance, the People's Court will not support it, except where it can prove based on new evidence that the other party's claim has expired within the statute of limitations.
Mandatory statute of limitations
The party's prior waiver of the benefit of statute of limitations is invalid
The period, calculation method, and reasons for suspension and interruption of the statute of limitations are stipulated by law, and any agreement between the parties is invalid.
The following claims are not subject to the statute of limitations:
Request to stop infringement, remove obstruction, eliminate danger
The right holder of real property rights and registered movable property rights requests the return of property
Request for payment of child support, alimony or alimony
Other claims to which the statute of limitations does not apply according to law
The following claims for claims are not subject to the statute of limitations:
Right to claim deposit principal and interest
Claims for principal and interest on redemption of treasury bonds, financial bonds and corporate bonds issued to unspecified objects
The right to claim for payment of capital arising from the investment relationship
Other claims for claims to which the statute of limitations does not apply according to law
Types and starting dates of statutes of limitations
type
Ordinary statute of limitations
The statute of limitations for petitioning the People's Court for protection of civil rights is 3 years. If the law provides otherwise, such provisions shall prevail.
The statute of limitations for filing lawsuits and applying for arbitration arising from disputes over international sales of goods contracts and technology import and export contracts is four years.
Maximum statute of limitations
If more than 20 years have passed since the date the rights were damaged, the people's court will not grant protection; in special circumstances, the people's court may decide to extend the time based on the right holder's application.
The ordinary statute of limitations period is calculated from the date when the right holder knows or should know that the right has been damaged and the obligor; if the law provides otherwise, such provisions shall prevail. The maximum statute of limitations period of 20 years is calculated from the date of the infringement of rights.
The ordinary statute of limitations may be subject to suspension or interruption provisions, but shall not apply to extension provisions. The maximum limitation period of 20 years can be extended, but the provisions on suspension and interruption do not apply.
Starting from
The right to claim a debt with conditions or a time limit shall be calculated from the date when the conditions are fulfilled or the time limit expires.
The right to claim a debt that has an agreed time limit for performance shall be calculated from the date of expiration of the payment period; if the parties agree to perform the same debt in installments, the statute of limitations period shall be calculated from the date of expiration of the last installment.
For claims against debts where the performance period has not been agreed upon or the performance period is unclear, the performance period may be determined in accordance with the provisions of the Civil Code, and the statute of limitations shall be calculated from the date on which the performance period expires; if the performance period cannot be determined, the statute of limitations shall be calculated from the date on which the creditor The statute of limitations shall be calculated from the date on which the grace period requiring the debtor to perform its obligations expires, but if the debtor expressly states that it will not perform its obligations when the creditor first asserts its rights against it, the statute of limitations period shall be calculated from the date that the debtor expressly states that it will not perform its obligations.
The right to claim a creditor's right to request another person's inaction shall be calculated from the time when the obligee knows that the obligor has violated the obligation of omission.
The statute of limitations for state compensation shall be calculated from the date when the compensation claimant knew or should have known that the actions of state agencies and their staff in exercising their powers infringed upon their personal rights and property rights, but the period of non-detention and other restrictions on personal freedom shall not be counted.
The statute of limitations for claims for compensation for sexual assault by minors begins when the victim reaches the age of 18.
If a person without capacity for civil conduct or a person with limited capacity for civil conduct has a claim against his or her legal representative, the statute of limitations shall be calculated from the date of termination of the legal representative.
If the rights of a person without capacity for civil conduct or a person with limited capacity for conduct are damaged, the statute of limitations shall be calculated from the date on which the legal representative knew or should have known that the rights were damaged. If the law provides otherwise, such provisions shall prevail.
Suspension of statute of limitations
Reasons for suspension of statute of limitations
Within the last 6 months of the statute of limitations, if the right to claim cannot be exercised due to the following obstacles, the statute of limitations will be suspended.
force majeure
A person without capacity for civil conduct or a person with limited capacity for civil conduct has no legal representative, or the legal representative dies, loses capacity for civil conduct, or loses agency power
No heir or estate administrator has been determined after the inheritance begins.
The right holder is controlled by the obligor or other persons
Other obstacles that prevent rights holders from exercising their right to request
Reasons for interrupting the statute of limitations
Basic rules
If one of the following circumstances occurs, the statute of limitations is interrupted, and the period of statute of limitations will be recalculated from the time of interruption or the termination of the relevant proceedings.
The obligee submits a request for performance to the obligor, the obligor's agent, the property custodian or the estate administrator, etc.
The obligor agrees to perform the obligation
The right holder files a lawsuit or applies for arbitration
Other circumstances that have the same effect as filing a lawsuit or applying for arbitration
The obligee makes a request for performance to the obligor
In any of the following circumstances, it shall be determined that "the obligee makes a request for performance to the obligor"
One party directly delivers a document asserting rights to the other party, and the other party signs, seals, or fingerprints the document, or the other party does not sign, seal, or fingerprint the document but can prove in other ways that the document has reached the party.
One party asserts its rights by sending a letter or data message, and the letter or data message reaches or should reach the other party
One party is a financial institution and deducts the principal and interest from the account of the other party in accordance with legal provisions or as agreed by the parties.
If the whereabouts of one of the parties is unknown, and the other party publishes an announcement with content claiming rights in an influential media at the national level or at the provincial level where the whereabouts of the unaccounted party is domiciled, but if there are other special provisions in laws and judicial interpretations, those provisions shall apply.
If the obligee claims part of the same claim, the effect of the interruption of the statute of limitations extends to the remaining claims, unless the obligee explicitly waives the remaining claims.
The obligor agrees to perform the obligation
If the obligor makes commitments or actions such as installment performance, partial performance, provision of guarantee, request for delayed performance, formulation of a debt repayment plan, etc., it shall be deemed as "the obligor agrees to perform the obligation"
The right holder files a lawsuit or applies for arbitration
If one party submits a complaint or oral complaint to the People's Court, the statute of limitations shall be suspended from the date of submission of the complaint or oral complaint.
When the rights holder files a request for the protection of corresponding civil rights with the People's Regulation Committee and other state agencies, public institutions, social groups and other social organizations that have the power to resolve relevant civil disputes according to law, the statute of limitations will be suspended from the date of filing the request.
It will be suspended from the date when the right holder reports or files a complaint to the public security organ, People’s Procuratorate, or People’s Act.
If the above-mentioned authorities decide not to file a case, withdraw a case, or not prosecute, the statute of limitations shall be recalculated from the date the right holder knew or should have known not to file a case, withdraw a case, or not prosecute.
The following matters have the same interruption effect as filing a lawsuit or applying for arbitration:
Application for payment order
Apply for bankruptcy, apply for bankruptcy claims
To apply for a declaration that the obligor is missing or dead for the purpose of asserting rights
Apply for pre-litigation measures such as pre-litigation property preservation and pre-litigation temporary injunction
Apply for enforcement
Apply to add a party or be notified to participate in litigation
Claiming Setoff in Litigation
Other circumstances in which the statute of limitations is interrupted
For a cause that interrupts the statute of limitations for one of the joint creditors or joint debtors, it shall be determined that the statute of limitations for the other joint creditors or joint debtors is also interrupted.
If a creditor files a subrogation lawsuit, it shall be deemed that all claims against the creditor are subject to an interruption of the statute of limitations.
If the creditor's rights are transferred, the statute of limitations shall be deemed to be interrupted from the date when the notice of transfer of the creditor's rights reaches the debtor.
In the case of debt assumption, if it constitutes the original debtor's recognition of the debt, the statute of limitations shall be deemed to be interrupted from the date when the intention to assume the debt reaches the creditor.