Contractual and non-contractual obligations in the Civil Code of the People's Republic of China and the Civil Code of the Russian Federation: a comparative legal study
The adoption of the Civil Code of the People's Republic of China in 2020 became a catalyst for the further development of civil, in particular binding, legal relations. The article provides a comparative study of contractual and non-contractual obligations enshrined in the Civil Codes of the People's Republic of China and the Russian Federation. As a result of the analysis of the regulatory provisions of the Civil Code of the Russian Federation and the Civil Code of the People's Republic of China, it is possible to establish common approaches in regulating contractual and non-contractual obligations. Consideration of the regulatory parameters of both legislative platforms also allows us to draw attention to the exceptional, specific features of contractual and non-contractual obligations in Russia and China. Based on the analysis of the Civil Code of the Russian Federation and the Civil Code of the People's Republic of China, it is concluded that, despite the national specifics of the legal regulation of contractual relations, both contractual and non-contractual (torts, quasi-agreements) grounds for obligations are legally established in the Civil Code of the People's Republic of China.
Keywords: Civil Code, People's Republic of China, Russian Federation, law of obligations, contract, tort, quasi-agreement, contractual obligation, non-contractual obligation, tort liability.
The adoption in 2020 of the first Civil Code of the People's Republic of China in the history of China determined the priority designation of Chinese civil law as a fundamental branch, the legal regulation of which is aimed at property relations.
The relationship of obligations is a fundamental component of civil law. Obligations are characterized by specific reasons for their occurrence. In particular, the Civil Code of the People's Republic of China <1> specifies contractual and non-contractual (torts, quasi-agreements) grounds for obligations. In the Russian Federation, the grounds for obligations include contracts (for example, contracts in the field of entrepreneurial activity <2>) and other transactions, harm, unjustified enrichment, as well as other grounds specified in the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation) (paragraph 2 of art. 307 OF THE Civil Code OF the Russian Federation) <3>.
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<1> The Civil Code of the People's Republic of China. Official text (in Chinese).
<2> Reliable N.N. Legal regulation of entrepreneurial activity // Legal world. 2019. N 8. pp. 39 - 42.
<3> The Civil Code of the Russian Federation (Part one) of November 30, 1994 N 51-FZ (as amended on 02/25/2022.
In order to understand the specifics of contractual and non-contractual obligations in the PRC and the Russian Federation, it seems necessary to analyze the relevant legislative platforms, to find obvious similar aspects in them, as well as significant differences. In turn, this will contribute to a better understanding of the current legal reality of the PRC in the field of contractual and non-contractual obligations. Indeed, for Russia, which is China's main partner in the economy and other prerogative spheres, it is important to understand how certain legal mechanisms of the PRC operate in relation to mandatory parameters.
Having refused to create an independent section of the law of obligations, the Chinese legislator placed general rules that are legally binding in section III "Contracts", which consists of three parts:
1) general provisions on contracts;
2) standard (named) contracts;
3) quasi-agreements <4>.
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<4> The Civil Code of the People's Republic of China (translated into Russian by Bazhanov P.V.).
The subsection "General provisions on contracts" contains the rules governing:
1) General provisions (Chapter 1);
2) procedural aspects of the conclusion of the contract (Chapter 2);
3) aspects of the validity of the contract (Chapter 3);
4) mechanisms implementing the execution of the contract (Chapter 4);
5) contract security parameters (Chapter 5);
6) aspects of contract modification and transfer of the contract (Chapter 6);
7) provisions regarding the termination of rights and obligations under the contract (Chapter 7);
8) the basics of liability for breach of contract (Chapter 8).
The general provisions include rules common to the entire section governing civil relations arising from contracts (art. 463). In accordance with the normative provisions of the Civil Code of the People's Republic of China, the contract is represented by an agreement between the subjects of civil relations, in the content of which the legal mechanisms aimed at establishing, changing or terminating civil relations are displayed. To agreements on marriage, adoption, custody and other personal legal relations, the norms of the law provided for in relation to the relevant personal legal relationship are applied; in the absence of norms, the application of the norms of the section is allowed by analogy, taking into account the essence of this legal relationship (art. 464).
It is important to note that the general provisions of the section "Contracts" of the Civil Code of the People's Republic of China are predetermined by their purpose as general provisions of the law of obligations. It is the content and legal nature of the general provisions of the section "Contracts" of the Civil Code of China that determined the fact that the relevant provisions are norms of the law of obligations.
Most of the legal institutions included in the General Provisions on Contracts of the Civil Code of the People's Republic of China are identical to the institutions of the Civil Code of the Russian Federation included in the general provisions of Section III "General part of the law of obligations". The only difference is that in the Civil Code of the Russian Federation, these legal institutions apply to any obligations, while the legal institutions included in the General Provisions on Contracts of the Civil Code of the People's Republic of China are applicable exclusively to contractual obligations.
The Civil Code of the Russian Federation also contains general provisions on the contract, included as a subsection in the General Part of the law of obligations and regulating a number of similar Chinese legal institutions: concepts and terms of the contract (Chapter 27), conclusion of the contract (Chapter 28), amendment and termination of the contract (Chapter 29).
Subsection 2 "Standard (named) contracts" in the Civil Code of the People's Republic of China is a special part of contract law and contains rules governing certain (named) types of contracts. In total, nineteen types of contracts are included in the code. In general, this subsection is based on the normative material of the Law of the People's Republic of China "On Contracts" <5> and repeats its content. Many articles in the Code were transferred from the law without changes. But changes and additions have been made to the regulation of certain types of contracts. Four types of contracts are new, as they were not previously contained in the Law of the People's Republic of China "On Contracts". These are a guarantee agreement, a factoring agreement, a utility contract and a partnership agreement.
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<5> .
The Civil Code of the Russian Federation also has a special part of the law of obligations, which includes section. IV "Certain types of obligations", which includes legal norms regulating twenty-six types of contracts, obligations from harm, obligations due to unjustified enrichment, actions in the interest of others without instructions. The section "Certain types of obligations" of the Civil Code of the Russian Federation contains institutions of contractual and non-contractual obligations.
Special attention in the section "Contracts" of the Civil Code of the People's Republic of China is called subsection 3 "Quasi-agreements". It includes two chapters: "Conducting other people's affairs without instructions" (ch. 28), "Unjustified enrichment" (ch. 29). This section is new in the civil law of the People's Republic of China.
The term "quasi-agreements" (quasi ex contract - Latin) means "obligations as if from contracts", is used when binding relations similar to contractual ones are actually established between persons who are not in contractual relations with each other. The term and concept of quasi-contract originated in Roman law as the basis for the emergence of obligations <6>.
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<6> Demidov I.A. On quasi-contractual obligations in Roman private and modern Russian civil law // Bulletin of the Saratov State Law Academy. 2018. N 6(125). pp. 106 - 113.
The inclusion of an independent subsection "Quasi-agreements" in the Civil Code of the People's Republic of China indicates that the Chinese legislator shares the traditional approach of the pandect system to the grounds for the occurrence of obligations and applies it in his legislation. At the same time, it remains unclear why quasi-agreements are included by the legislator in the section "Contracts".
Let's consider how the Civil Code of the People's Republic of China regulates quasi-contractual grounds for obligations.
Conducting other people's affairs without instructions is regulated by the norms of Chapter 28 (Articles 979-984) of the subsection "Quasi-agreements"; Article 121 (Chapter 5), Article 183 (Chapter 7) of the General Part of the Civil Code of the People's Republic of China. Together, these norms form the regulatory system of the institute - conducting other people's affairs without instructions in the Civil Code of the People's Republic of China.
Article 121 of the General Part of the Code establishes that a person who manages the affairs of another person in order to avoid causing damage to his interests, but at the same time does not have an obligation to this person provided for by law or contract, has the right to demand compensation from the beneficiary for the necessary expenses incurred in connection with this. Articles 979-984 of the subsection "Quasi-agreements" supplement this rule with new provisions: if a person who voluntarily manages the affairs of other persons without a legal or agreed basis in order to avoid losses and harm to the interests of these persons suffers losses as a result of managing affairs, he may require the beneficiary to provide him with appropriate compensation. If voluntary management does not correspond to the true interest of the beneficiary, the manager will not enjoy the rights specified above, except in cases where the true interests of the beneficiary violate the law, public order and good customs (art. 979). The beneficiary, within the framework of the benefits received, bears obligations to the manager in accordance with the law (Article 980). The business manager of other persons should apply methods that are beneficial to the beneficiary. If the termination of the management of affairs is detrimental to the beneficiary, it should not be interrupted without a legitimate reason (art. 981). If a person voluntarily manages the affairs of other persons and can notify the beneficiary of this, he must notify him in a timely manner. If the managed cases do not need an urgent solution, you should wait for the instructions of the beneficiary (art. 982). After the completion of the management, the manager must inform the beneficiary about the management affairs. The property acquired by the administrator in the management affairs must be transferred to the beneficiary in a timely manner (Article 983).
Article 183 of Chapter 8 of the General Part establishes liability for causing harm in the case of conducting other people's business without instructions. It places the responsibility for such harm on the manager, but establishes the possibility of compensation for the manager's expenses on the part of the beneficiary.
The institute of unjustified enrichment is regulated in the Civil Code of the People's Republic of China by Articles 122 of the General Part and Articles 985 - 988 of Chapter 29 of the subsection "Quasi-agreements". Articles 122, 985 establish the rules according to which, in the event of the acquisition by any person (the acquirer) of an unjustified benefit, in the absence of a legitimate reason, the person to whom the losses were caused (the victim) may demand from the acquirer the return of the benefit received, except in the following cases: payments for the fulfillment of a moral obligation; fulfillment of an obligation before the onset of the deadline for its completion; fulfillment of an obligation, if it is known that there is no obligation to fulfill it.
Russian civil law does not know the concept of a "quasi-contractual obligation", and the Russian Civil Code does not have such a basis for obligations as a quasi-agreement, in the form in which it is known to Roman law and the modern pandect system of private law. At the same time, obligations due to actions in someone else's interest without instructions (Chapter 50) and unjustified enrichment (Chapter 60) are contained in the Civil Code of the Russian Federation as types of obligations, along with contracts and torts.
Articles 980-989 of Chapter 50 of the Civil Code of the Russian Federation contain norms regulating the institution of acting in someone else's interest without instructions. This section defines the conditions for actions in the interest of others, as well as aspects of responsibility for illegal actions. Articles 1102-1109 of Chapter 60 of the Civil Code of the Russian Federation establish the obligation of the acquirer to return the unjustified enrichment to the victim.
As a result of the analysis of the legal parameters governing "acting in someone else's interest without instructions" (the Civil Code of the Russian Federation) and "conducting other people's affairs without instructions" (the Civil Code of the People's Republic of China), as well as "unjustified enrichment" in Russian and Chinese laws, it is possible to establish a unity of approaches regarding the legal nature of these institutions, regardless of the national characteristics of individual details their regulation. So, for example, in the Russian construction of unjustified enrichment, a legal obligation is defined for the acquirer to return the unjustified enrichment to the injured party. The Civil Code of the People's Republic of China shows that the aggrieved party in relation to the acquirer can exercise its right to demand the return of unjustified enrichment. In addition, in Russian law, unlike the law of the People's Republic of China, unjustified enrichment and conducting other people's affairs without instructions are considered as separate, independent types of non-contractual obligations and are not combined into a single section.
The basis for the occurrence of obligations in the pandect system of civil law is considered to be a tort. The recognition of a tort in the Russian Federation as one of the types of non-contractual obligations is confirmed by the fact that its main regulatory parameters are located in Chapter 59 "Obligations due to harm" of the Civil Code of the Russian Federation, which is a component of a Special part of the Code, section. IV "Certain types of obligations".
An excellent position regarding liability for tort has developed in the PRC. The conceptual approach to understanding tort liability differs in the Civil Code of the People's Republic of China by a national feature. First of all, this is manifested in the structural arrangement of the institute in the Code. Tort liability in the Civil Code of the People's Republic of China is not related to the traditional system of law of obligations, since there is no separate section of law of obligations in the Code, and liability for tort becomes an independent part of the civil law system. The legislator emphasizes this by placing the norms of liability for tort in the last, seventh section "Tort liability", significantly distancing it from the section "Contracts".
It is also important to note that in the substantive content of the Civil Code of the People's Republic of China there are some contradictory points regarding tort as the basis for the obligation. In the General Provisions of the Civil Code, in Chapter 5 "Civil Rights", a tort is considered as the basis of an obligation. The norms of Chapter 8 of the Civil Code of the People's Republic of China do not fix aspects of civil liability for tort, but only regulate the consolidation of civil liability of a general nature.
Section VII "Tort liability" includes in its content general rules on obligations resulting from harm and special provisions.
The normative provisions of the General Part of the section (Chapter 1) establish that if a person voluntarily harms the civil rights and interests of another person, responsibility for causing harm (tort liability) is assigned to the harmer.
In the Civil Code of the Russian Federation, the institution of liability due to harm is placed in Chapter 59 and is considered as one of the types of non-contractual obligations. The chapter contains general and special provisions on compensation for harm. In the general part, in Article 1064 of the Civil Code of the Russian Federation, it is established that a person who has caused damage to a person or property is obliged to compensate it in full.
Thus, it can be established that liability for tort is regulated by the norms of both the Civil Code of the People's Republic of China and the Civil Code of the Russian Federation. The civil legislation of the Russian Federation, in particular the Civil Code of the Russian Federation, considers tort as the basis for obligations, which is expressed in the title of the chapter "Obligations due to harm" and its structural location in the section "Certain types of obligations".
In the Civil Code of the People's Republic of China, the interpretation of the obligation from the tort is not unambiguous. The Civil Code of the People's Republic of China establishes a national, non-standard approach to understanding tort liability as an independent legal institution in civil law, not directly related to the law of obligations.
The section "Contracts" contains the legal norms governing the relations of obligations arising from contracts. Contracts are the traditional basis for the emergence of obligations, and the Chinese legislator adheres to the traditions of the pandect system in this matter.
A special feature of the section was the inclusion of the subsection "Quasi-agreements", which regulates obligations from unjustified enrichment and conducting other people's affairs without instructions. The inclusion of quasi-contractual grounds for obligations in the PRC Code also indicates a commitment to traditions. At the same time, it is unclear why quasi-agreements are included in the "Contracts" section, since unjustified enrichment and conducting other people's affairs without instructions are considered non-contractual obligations.
Based on the results of the analysis of regulatory provisions, it can be concluded that, taking into account the national specifics of the legal regulation of contractual relations, contractual and non-contractual (torts, quasi-agreements) grounds for obligations are established in the regulatory provisions of the Civil Code of the People's Republic of China. This fully corresponds to the pandect system of civil law.
