Ⅱ．Civil and Commercial Law

General

Law of the People's Republic of China on the Application of Law to Civil Relations Involving Foreign Interests

(Adopted at the 17th Meeting of the Standing Committee of the Eleventh National People's Congress on October 28，2010，promulgated by Order No．36 of the President of the People's Republic of China on October 28，2010，and effective as of April 1，2011)

Contents

Chapter Ⅰ　General Provisions

Chapter Ⅱ　Civil Subjects

Chapter Ⅲ　Marriage and Family

Chapter Ⅳ　Inheritance

Chapter Ⅴ　Property Rights

Chapter Ⅵ　Creditor's Rights

Chapter Ⅶ　Intellectual Property Rights

Chapter Ⅷ　Supplementary Provisions

Chapter Ⅰ　General Provisions

Article 1　This Law is formulated for the purposes of clarifying the application of law to civil relations involving foreign interests，rationally resolving civil disputes involving foreign interests，and safeguarding the legitimate rights and interests of the parties concerned．

Article 2　Laws applicable to civil relations involving foreign interests shall be determined in accordance with this Law．Specific provisions on the application of law to civil relations involving foreign interests prescribed in other laws shall prevail．

In the absence of provisions on the application of law to civil relations involving foreign interests in this Law and other laws，laws most closely connected to the civil relation involving foreign interests shall apply．

Article 3　The parties concerned may，in accordance with the provisions of laws，expressly choose laws applicable to civil relations involving foreign interests．

Article 4　Mandatory provisions on civil relations involving foreign interests prescribed in laws of the People's Republic of China shall directly apply．

Article 5　Laws of the People's Republic of China shall apply where the application of foreign laws will harm the public interest of the People's Republic of China．

Article 6　Where the laws of a foreign country apply to a civil relation involving a foreign interest，if different regions of the foreign country are governed by different laws，laws of the region most closely connected to the civil relation involving a foreign interest shall apply．

Article 7　Laws related to civil relations involving foreign interests shall apply to statutes of limitations．

Article 8　Lex fori shall apply in determining the nature of civil relations involving foreign interests．

Article 9　Foreign laws applicable to civil relations involving foreign interests shall not include laws of foreign countries on the application of law．

Article 10　Foreign laws applicable to civil relations involving foreign interests shall be ascertained by people's courts，arbitration bodies or administrative organs．Where a party concerned chooses to be governed by foreign laws，such party shall provide the laws of the relevant foreign country．

Where foreign laws are unable to be ascertained or contain no relevant provisions，laws of the People's Republic of China shall apply．

Chapter Ⅱ　Civil Subjects

Article 11　The laws of the habitual residence of natural persons shall apply to the capacity for civil rights of natural persons．

Article 12　The laws of the habitual residence of natural persons shall apply to the capacity for civil conduct of natural persons．

Where a natural person engages in civil activities，and he/she has no capacity for civil conduct according to the laws of his/her habitual residence but has such capacity according to the lex loci actus，the latter shall prevail，except for matters relating to marriage，family and inheritance．

Article 13　The laws of the habitual residence of natural persons shall apply when such persons are declared missing or dead．

Article 14　The laws of the place of registration of a legal person and the branch offices thereof shall apply in matters related to the capacity for civil rights，capacity for civil conduct，organizational structure，shareholders' rights and obligations，and other matters．

Where a legal person's principal place of business is different from the place of registration，the laws of the principal place of business may apply．The habitual residence of a legal person shall be the principal place of business．

Article 15　The laws of the habitual residence of a right holder shall apply to personality rights．

Article 16　Lex loci actus shall apply to acts of agency; however，the laws of the place the relationship occurred shall apply to civil relations between principals and agents．

The parties concerned may choose by agreement the laws applicable to agency agreements．

Article 17　The parties concerned may choose by agreement the laws applicable to a trust．Where the parties have made no such choice，the lex rei sitae of the trust res or the laws of the place the relationship occurred shall apply．

Article 18　The parties concerned may choose by agreement the laws applicable to an arbitration agreement．Where the parties have made no such choice，the laws of the place of the arbitration body or laws of the place of arbitration shall apply．

Article 19　Where lex patriae applies in accordance with this Law，and a natural person has two or more nationalities，the lex patriae of his/her habitual residence shall apply．Where he/she has no country of habitual residence，the lex patriae with which he/she has closest ties shall apply．In the case of stateless natural persons or natural persons without clear nationality，the laws of their habitual residence shall apply．

Article 20　Where the laws of the habitual residence apply in accordance with this Law，and the habitual residence of a natural person is unclear，laws of the place of his/her current residence shall apply．

Chapter Ⅲ　Marriage and Family

Article 21　The laws of the common habitual residence of the parties concerned shall apply to conditions of marriage．In the absence of a common habitual residence，the common lex patriae of the parties shall apply．Where parties of different nationalities get married in the habitual residence or country of nationality of either party，the laws of the place of marriage shall apply．

Article 22　Formalities for marriage shall be valid if they comply with the laws of the place of marriage，or the laws of the habitual residence or the lex patriae of either party．

Article 23　The laws of the common habitual residence shall apply to marital relations．In the absence of a common habitual residence，the common lex patriae of the parties concerned shall apply．

Article 24　The parties concerned may choose by agreement to apply the laws of the habitual residence of either party，lex patriae of either party，or the lex rei sitae of their main property to marital property relations．Where the parties have made no such choice，the laws of their common habitual residence shall apply．In the absence of a common habitual residence，the common lex patriae of the parties shall apply．

Article 25　The laws of the common habitual residence shall apply to personal and property relations between parents and children．In the absence of a common habitual residence，either the laws of the habitual residence of one party or the lex patriae of the parties concerned shall apply，depending on which laws favor protecting the rights and interests of the weak．

Article 26　The parties concerned may choose by agreement to apply the laws of the habitual residence of either party or the lex patriae of either party to divorce by consent．Where the parties have made no such choice，the laws of their common habitual residence shall apply．In the absence of a common habitual residence，the common lex patriae of the parties shall apply．Where the parties are of different nationalities，the laws of the place where the agency handling the divorce formalities is located shall apply．

Article 27　The lex fori shall apply to litigious divorce．

Article 28　The laws of the habitual residence of the adopter and the laws of the habitual residence of the adoptee shall apply to the conditions and formalities for adoption．The laws of the habitual residence of the adopter at the time of adoption shall apply to the validity of an adoption．The lex fori or the laws of the habitual residence of the adoptee at the time of adoption shall apply to the termination of an adoptive relationship．

Article 29　The laws of the habitual residence of either party，the lex patriae of either party or the lex rei sitae of major assets shall apply to fosterage，depending on which laws favor protecting the rights and interests of the dependent．

Article 30　The laws of the habitual residence of either party or the lex patriae of either party shall apply to guardianship，depending on which laws favor protecting the rights and interests of the ward．

Chapter Ⅳ　Inheritance

Article 31　The laws of the habitual residence of the decedent at the time of death shall apply to inheritance by operation of law; however，the lex situs shall apply to statutory succession to real property．

Article 32　The form of testamentary disposition shall be valid if it complies with the laws of the habitual residence or the lex patriae of the testator or the lex loci actus at the time of death or will creation．

Article 33　The laws of the habitual residence or the lex patriae of the testator at the time of death or will creation shall apply to the validity of a will．

Article 34　The lex rei sitae shall apply to the administration of an estate．

Article 35　Where there is no inheritor of an estate，the lex rei sitae at the time of death of the decedent shall apply．

Chapter Ⅴ　Property Rights

Article 36　The lex situs shall apply to property rights of real property．

Article 37　The parties concerned may choose by agreement the laws applicable to property rights of movable property．Where the parties have made no such choice，the lex rei sitae at the time of the legal incident shall apply．

Article 38　The parties concerned may choose by agreement the laws applicable to the change of property rights of movable property during transport．Where the parties have made no such choice，the laws of the transport destination shall apply．

Article 39　The laws of the place where the rights of marketable securities were obtained or other laws that have the closest connection with the securities shall apply to marketable securities．

Article 40　The laws of the place where a pledge is instituted shall apply to pledges of rights．

Chapter Ⅵ　Creditor's Rights

Article 41　The parties concerned may choose by agreement the laws applicable to a contract by agreement．Where the parties have made no such choice，the laws of the habitual residence of the party whose performance of obligations best reflects the characteristics of the contract or other laws having the closest connection with the contract shall apply．

Article 42　The laws of the habitual residence of a consumer shall apply to a consumer contract．Where the consumer chooses to apply the laws of the place where the goods or services were provided，or the business operator concerned does not engage in the relevant business activities at the habitual residence of the consumer，the laws of the place where the goods or services were provided shall apply．

Article 43　The laws of a laborer's work place shall apply to a labor contract．Where it is difficult to determine the work place of the laborer，the laws of the employer's principal place of business shall apply．The laws of the place of dispatch shall apply to labor dispatch services．

Article 44　The lex loci delicti shall apply to tort liabilities; however，where the parties concerned have a common habitual residence，the laws of the common habitual residence shall apply．Agreements on the choice of law reached by the parties concerned after the tort shall prevail．

Article 45　The laws of the habitual residence of the infringed party shall apply to product liability．Where the infringed party chooses to apply the laws of the principal place of business of the infringer or the lex loci delicti，or the infringer does not engage in the relevant business activities at the habitual residence of the infringed party，the laws of the principal place of business of the infringer or the lex loci delicti shall apply．

Article 46　The laws of the habitual residence of the infringed party shall apply to infringements on the right of name，right of portrait，right of reputation，right of privacy or other personality rights via the Internet or by other means．

Article 47　Laws agreed upon by the parties concerned shall apply to unjust enrichment and negotiorum gestio．Where the parties have made no such choice，the laws of the common habitual residence of the parties shall apply．In the absence of a common habitual residence，the laws of the place where unjust enrichment or negotiorum gestio occurred shall apply．

Chapter Ⅶ　Intellectual Property Rights

Article 48　The laws of the place where protection is claimed shall apply to ownership and contents of intellectual property rights．

Article 49　The parties concerned may choose by agreement the laws applicable to the transfer and licensed use of intellectual property rights．Where the parties have made no such choice，the relevant provisions of this Law on contracts shall apply．

Article 50　The laws of the place where protection is claimed shall apply to liabilities for infringements of intellectual property rights．The parties concerned may also choose by agreement to apply the lex fori after the infringement occurs．

Chapter Ⅷ　Supplementary Provisions

Article 51　Where there is any discrepancy between the provisions of this Law and Article 146 and Article 147 of the General Principles of the Civil Law of the People's Republic of China or Article 36 of the Law of Succession of the People's Republic of China，this Law shall prevail．

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