Чердакова Л. А., Ямбаев А. А. Различия в законодательном регулировании договоров купли-продажи в Российской Федерации и Китайской Народной Республике
Различия в законодательном регулировании договоров купли-продажи
в Российской Федерации и Китайской Народной Республике
Differences in legislative regulation of sales agreement in Russian Federation
and People’s Republic of China
Чердакова Лариса Анатольевна
Cherdakova Larisa Anatolyevna
к.ю.н., доцент, зав. кафедрой гражданского права
ВСФ ФГБОУ ВО РГУП, г. Иркутск
Ямбаев Алексей Анатольевич
Iambaev Aleksei Anatolyevich
магистрант ВСФ ФГБОУ ВО РГУП, г. Иркутск
Аннотация. Статья посвящена сравнительному анализу законодательств Российской Федерации и Китайской Народной Республики с позиции регулирования договоров купли-продажи. В статье также описывается влияние различий в данном регулировании на возникновение трудностей и перспектив развития внешнеэкономической деятельности двух стран.
Annotation. This paper is written about the analysis of Russian Federation and People’s Republic of China legislation systems in terms of sales agreement institute regulation. The paper also touches the idea of how regulation differences influence on the both countries possibilities and issues in trade transactions system.
Ключевые слова: законодательство, договор купли-продажи, анализ, норма, сотрудничество.
Keywords: legislation, sales agreement, analysis, statute, collaboration.
For past few years of economic reform implementation People’s Republic of China global advances and taking the lead in market made China the world’s point of focus.
The changes that takes place in Russian Federation and People’s Republic of China over the last years lead to total renovation of sales agreement legal regulation. In addition, realization of those changes need to have its specific way to overcome the issue of sale agreement legal regulation as in Russia, as in China . The regulation should not only conform to the standards of international trade circulation due to the integration with the world economic mechanism, but also should correspond to country specificity . For reaching this unity on the one hand and considering the domestic aspects on the other hand, researching and development of sales agreement institute should become the constant and main aim for both partnership countries .
The analysis of sales agreement in Russian and Chinese legislation systems has a lot merits, as both countries begun to develop the market relations under the conditions of state-planned economy system. In the meantime, the developing of China market relations was “socialistic” oriented . The possibility to compare that two countries’ law and economic systems gives an occasion to make a comparative analysis, that theoretically can provide some legislation improvement in both countries.
The analysis of Chinese and Russian sales agreements legislations brings to the understanding as both countries legislations commonality as its differences. In spite of the fact foreign trade deals are regulated by the group of statutes, the comparative basis of Chinese and Russian sales agreements legislations is taken from the Civil Code of the Russian Federation and Contract Law of the People’s Republic of China [2, 3, 9].
The definitions of agreement in both countries’ acts rather similar – in both variants it is defined that a seller should transfer the goods to a buyer and a buyer should pay for the goods. The legal characteristics of Chinese and Russian sales agreements legislations has plenty in common. Both definitions of agreements provide consensual, commutative and mutual character of agreements. Nevertheless, Chinese law also contains the unofficiality of agreement that reflects on the form of the agreement [3, 9].
The analysis of specific elements in the sales agreements brings to the conclusion about commonness of countries’ legislative frameworks [3, 9].
The Civil Code of the Russian Federation does not contain any specific statute that places a limitation or requirement on the agreement parts, whereas Chinese act does contain – it provides requirement to the agreement part in its professionalism due to the franchise contract, and requirement to agreement part in having the warrant of attorney or the mandate when it comes to the agency relations [3, 9].
The subject matter of the sales agreement in Russian civil jurisprudence does not have a definite form, however generally it is the action of agreement parts in case of assumed obligations. In Chinese law the subject matter of the sales agreement is transferring the property right, exclusionary right and right of obligation, however strictly only goods may be transferred due to the sales agreement [3, 9].
The subject-matter of a treaty in both countries’ legislation provide obligatory pointing the description of goods and its amount [3, 9].
The cost of sales agreement during the Chinese law, as well as in Russian law, is conformed by the agreement parts. In case of absence the cost information or information about paying for the goods, the agreement is making applied in connection with the market price on the date of agreement at the place of its implementation. The Chinese legislation also has agreement costs that are made by the government – in the context of changing the government costs during the agreement implementation the payment transactions performs in accordance with the costs that were existing on the moment of the goods transferring or paying for the goods [3, 9].
The effect of the sales agreement breach in both countries’ acts has in common and its differences. For instance, in accordance with the Civil Code of the Russian Federation if a buyer breach the agreement’s timely payment terms, a seller has a right to demand to pay for the goods from a buyer. The analogic principle is contained in the Chinese act. The common ideas spread in the both legislations when it comes to a corrective measures implementation, payment of a penalty, deposit loss and recovery of losses – the statutes around these principles do not collide to each other. However, some statutes are colliding. According to the Civil Code of the Russian Federation, the entrepreneurs respond for their actions with no culpability as they are professional economic agents. Such situation is not observed in Chinese law – Chinese commercial organization is not a special subject of economic relations and does not respond for the wrongful acts on the same basis as private individual [3, 9].
Another collision of the Chinese and Russian statutes is expressed in performance of an agreement obligation. In the Russian legislation wrongful act can be determined as action as inactivity, while Chinese act does not prescribe inactivity as wrongful act that leads agreement part’s responsibility [3, 9].
Chinese and Russian law regulating the agreement relationship in the foreign trade activity has a lot of in common that allow to establish the partnership in group of trade fields, however the differences of countries’ legislations such as determination of the entrepreneurs’ responsibility and facing the controversial inactivity as wrongful act, need to be marked and taken into account in the trade relation process.
The analysis of the Chinese and Russian statutes allows to come to conclusion that future development of partnership projects as an effective instrument for the extension of foreign economic relations between countries, is need to be controlled for the purpose of understanding the legislation peculiarity of every international agreement part.
The present differences between two countries’ legislations focus on deepening the analysis of sale agreements problem. Thus, Chinese and Russian legislations diversity in contractual interpretation can become sufficient fundament for deeper research in the problem of contractual parts’ will and stated wish correlation . The issues as development the notarial system and official registration institute both can be solved with the research of countries’ law system differences in sale agreements forms .
We suppose that the aim of deepening bilateral cooperation between China and Russia reaches in widening the investment collaboration not only in trade relations, particularly by using sale agreements, but also in the other areas of economic cooperation, for example, in the scientific research sphere generally or by development of cooperation in the intellectual property infringement sphere.
- Chan, L.H. Dogovor kupli-prodazhi po zakonodatel’stvu Rossii i V’etnama [Sale agreement in Russian And Vietnam legislations] – diss… cand. law sc. — (http://www.dslib.net/civil-pravo/dogovor-kupli-prodazhi-po-zakonodatelstvu-rossii-i-vetnama.html).
- Grazhdanskii kodeks Rossiiskoi Federatsii. Chast’ chetvertaya [The Civil Code of the Russian Federation. Part Four] [Text]: federal law on December 18, 2006 No 230-FZ // Parlamentskaya gazeta [Parliament newspaper]. – 2006. – No 214-215.
- Grazhdanskii kodeks Rossiiskoi Federatsii. Chast’ vtoraya [The Civil Code of the Russian Federation. Part Two] [Text]: federal law on January 26, 1996 No 14-FZ // Sobranie zakonodatel’stva RF [Corpus of legislative acts of the Russian Federation]. – 1996. – No 5. – P. 410.
- Kadochnikov, P.A., Salamatov, V.Y., Spartak, A.N. Economicheskii poyas evraziiskoi integrastii [Economic belt of Eurasia integration] [Text] / Kadochnikov, P.A. [ect.] // EAES i Shelkovyi put’: novyi mirovoi poryadok [EAEC and Silk road: new world order]: publikatsyya «Vesti. Economika» [publication ««Vesti. Economika»]. — 2nd ed. – Moscow, 2016. — P. 198.
- Kembayev, Z.M. Regional’naya integratsiya v Evrazii: osnovnye priznaki, problem i perspektivy [Eurasia Region integration: the main characteristics, problems and perspectives] [Text] / «Rossiiskii yuridicheskii zhurnal» [Russian law magazine]. — 2016. — No. 2. — P. 32-45.
- Mikhalev, M.M. «Odin poyas, Odin put’» kak novaya vneshnepoliticheskaya strategiya KNR. Kratkii analiz vnurtikitaiskoi diskussii [«One belt, one road» as new outward strategy of People’s Republic of China. Short analysis of intrachinese discussion] [Text] / Mikhalev, M.M. // Kontury global’nykh transformatsii: politica, economika, parvo [Outlines of global transformations: politics, economy, law]. – 2016. No 6 – P. 50.
- Mukhtarova, A.R., Semenov, A.V. Pravovoe regulirovanie dogovora mezhdunarodnoi kupli-prodazhi tovarov [Legal regulations of international sales agreement] [Text] / Mukhtarova, A.R. [ect.] // Leningradskii yuridicheskii zhurnal [Leningrad law magazine]. — 2015. No 4. – P. 42.
- Petrusha, A.A. Regulirovanie dogovora mezhdunarodnoi kupli-prodazhy po pravu Anglii i SSHA [Regulation of international sale agreement in English and American law] [Text]: diss… cand. law sc.: 12.00.03 – Moscow, 2013. – P. 189. – RGB OD, 61 13-12/423.
- Zakon KNR o dogovorakh [Contract Law of the People’s Republic of China] [Text]: March 15, 1999 // Vtoraya sessiya VSNP devyatogo sozyva [the Second Session of the Ninth National People’s Congress]. – 1999. – No 15.