George Wang, Dentons Beijing
General Provisions of the Civil Law of the People’s Republic of China (hereinafter referred to as the General Provisions) was approved by the legislative authority of China on 15th March 2017, and shall come into effect on 1st October 2017. The implementation of the General Provisions is treated as the very beginning step for China to build up a complete civil law system, which certainly has a huge significance for the development of the legal system of China.
General Principles of the Civil Law of the People’s Republic of China (hereinafter referred to as the General Principles) is currently in effect in the area of the civil law system of China, and it was approved by the legislative authority of China on 12th April 1986. On one hand, the General Provisions takes in the fundamental principles and general rules of the General Principles. On the other hand, the former also improves supplements and adjusts the later.
The General Principles would not immediately lose its force after the General Provisions coming into effect. Both of them would be effective synchronously in a period of transition period, during which the conflicts between new law and old law, and the conflicts between new law and other legislations drafted on base of the old law would appear. Nevertheless, as per the principle of lex posterior deroga legi priori, when there is a conflict between the General Principles and the General Provisions, the later takes the priority in application.
Maritime Code of the PRC (hereinafter referred to as the Maritime Code) was enacted with a view to regulate the relations arising from maritime transport and those pertaining to ships. Maritime Code is a special law of the General Principles/ the General Provisions. As per the principle of lex specialis degrota legi generali, when there is a conflict between Maritime Code and the General Principles/ the General Provisions, the former takes the priority in application.
On such background, the writer analyses on the impacts of the General Provisions on Maritime Code, and presents the three key points as below:
- The General Provisions extends the limitation of action to three years.
One of the highlights of the General Provisions is it extends the limitation of action stipulated by the General Principles from two years to three years.
Article 135 of the General Principles:
“Except as otherwise stipulated by law, the limitation of action regarding applications to a people’s court for protection of civil rights shall be two years.”
Article 188 of the General Provisions:
“An action instituted in a people’s court for protection of civil rights is prescribed by three years, except as otherwise prescribed by any law.”
For different situations, the Maritime Code stipulates different limitation of action. In other words, there are short limitation (for 90 days or 1 year), general limitation (for 2 years) and long limitation (for 3 years) in the Maritime Code.
Article 257 of the Maritime Code:
“The limitation period for claims against the carrier with regard to the carriage of goods by sea is one year, …; Within the limitation period or after the expiration thereof, if the person allegedly liable has brought up a claim of recourse against a third party, that claim is timebarred at expiration of 90 days,…”
Article 260: “The limitation period for claims with regard to sea towage is one year, …”
Paragraph 2 of Article 261:
“The limitation period for claims with regard to the right of recourse as provided for in paragraph 3 of Article 169 of this Code (If the (colliding) ships in fault have caused loss of life or personal injury to a third party, they shall be jointly and severally liable therefor. If a ship has paid an amount of compensation in excess of the proportion prescribed in paragraph 1 of the Article, it shall have the right of recourse against the other ship(s) in fault) is one year, …”
Article 263: “The limitation period for claims with regard to contribution in general average is one year, …”
The limitation periods for the claims with regard to the carriage of passengers by sea, to charter parties, to collision of ships, to salvage at sea and to contracts of marine insurance are two years (the above-mentioned limitation of actions are stipulated by Article 258, Article 259, Article 261, Article 262 and Article 264 of the Maritime Code).
Article 265:
“The limitation period for claims with regard to compensation for oil pollution damage from ships is three years, … However, in no case shall the limitation period exceed six years, … ”
Then what corresponding impacts would be brought to the limitation of action of Maritime Code by the implementation of the General Provisions?
Some people hold the view that the limitation of action of Maritime Code is within the scope of “except as otherwise prescribed by any law” stipulated by the General Provisions. Furthermore, the Maritime Code is the special law, and shall take priority as per the principle of lex specialis degrota legi generali. As a result, the extended limitation of action for three years makes no differences to the Maritime Code.
Some people propose to correspondingly extend the two-year limitation in the Maritime Code to three years. They argue: “Before the implementation of the General Provisions, if the limitation of action stipulated by a special law is two years, and the commencing point for calculation is as same as the General Principles, the special law is just a repeat of the General Principles. Consequently, in the case that the General Provisions extends the limitation from two years to three years, the limitation stipulated by the special law shall correspondingly be extended”, and “the three-year limitation of action instituted by the special law shall also be extended correspondingly”.
Some people agree with the point of view that if the Maritime Code’s two-year limitation takes the General Principles’ limitation of action for reference, then the former shall still keeps same with the extended limitation. In respect of the short limitation of action, such as 90-day and one –year limitation in the Maritime Code, and long limitation of action, such as three-year limitation in the Maritime Code, shall remain the same.
In the writer’s point of view, to answer the above mentioned question, the fundamental reasons for the change of limitation of action brought by the General Provisions should be firstly taken into consideration. With the rapid development of the social economy，the commercial activities and the business models in practice become more and more flexible. As a result, the legal relationships between the parties become more and more complicated. Under such background, law shall give longer period of time to the parties to raise a claim to protect their legal rights. In other words, the extension of limitation of action by the General Provisions targets on extending the time of protection for parties. Consequently, the writer agrees that the two-year limitation of action in the Maritime Code, which takes the general limitation period stipulated by the General Principles, shall be correspondingly extended to three years.
For short limitation of action, such as one-year limitation of action for the claims with regard to carriage of goods by sea, to contribution in general average, the intention of legislation is to speed up the time for dealing with particular disputes, and the related international conventions also take one year as the time limitation (such as the Hague Rules and York-Antwerp Rules, 1994). Accordingly, the writer thinks the short time limitations in the Maritime Code shall be remain the same, and implementation of the General Provisions shall have no influence to them.
For long limitation of action in the Maritime Code, the intention of legislation is to grant longer period of time for the parties involved in particular disputes, which are usually more complicated in the confirmation of damages, in evidence-collection and in other respects. The characteristic of such disputes is more difficult to raise a claim, and such characteristic still exists. Therefore, the writer’s view is that the three-year limitation of action for particular disputes shall also be correspondingly extended. Nevertheless, for the international conventions signed by China, the limitation of action instituted by them shall not be changed by the General Provisions.
China is a country with statute laws, i.e., the judges should strictly observe the contents of legislations in making a decision. Consequently, before the amendment of the Maritime Code and for the disputes under the domination of the Maritime Code, the applicable limitation of action shall be in comply with the current contents.
- The General Provisions stipulates the principle of environment protection.
Another highlight of the General Provisions is the principle of environment protection is firstly established by Chapter one, Article 9,
“All civil activities conducted by civil subjects shall be conducive to saving resources and protecting the ecological environment”.
On the contrary, the Maritime Code does not have a particular provision especially drafted for the detailed punishments for environment pollution. The writer believes under the fundamental principle established by the General Provisions, absorbing something related to environment protection would be the trend for the revision of the Maritime Code.
- The General Provisions firstly identifies customs as a legal resource.
Article 10 of the General Provisions states:
“Civil disputes shall be resolved in accordance with the law; where there are no relevant provisions prescribed in the law, customs may be followed but public order and good customs shall not be infringed upon”.
This is the first time in Chinese legal system to clearly stipulate that customs can be relied as a legal resource in dispute-resolving.
China is a country with statutory law system, i.e., before the implementation of the General Provisions, customs shall not be relied on as a legal resource. On the contrary, in the practice of Maritime law, marine customs are treated as important public rules for the parties. Nevertheless, as per Article 268, Chapter 14 “Application of Law in Relation to Foreign-related Matters” of the Maritime Code:
“International practice may be applied to matters for which neither the relevant laws of the People’s Republic of China nor any international treaty concluded or acceded to by the People’s Republic of China contain any relevant provisions”.
In other words, before the implementation of the General Provisions, international costumes can only be applied in particular situations in foreign-related matters. After the General Provisions coming into effective, it, as general law, shall be supplementary applied with the Maritime Code, the special law. As a result, with the application of the General Provisions, the marine customs can also be applied in non-foreign-related matters, such as disputes related to carriage of goods and passengers by the domestic water of China.