CONTROL OF EXEMPTION CLAUSES ORDINANCE ——附加英文版
Hong Kong
CONTROL OF EXEMPTION CLAUSES ORDINANCE
(CHAPTER 71)
CONTENTS
ion
I PRELIMINARY
hort title
nterpretation and application
he "reasonableness" test
Dealing as consumer"
arieties of exemption clause
ower to amend Schedules 1 and 2
II CONTROL OF EXEMPTION CLAUSES
dance of liability for negligence, breach of contract, etc.
egligence liability
iability arising in contract
nreasonable indemnity clauses Liability arising from sale or
supply of
s
"Guarantee" of consumer goods
Seller's liability
Miscellaneous contracts under which goods pass Other provisions
about
racts
Effect of breach on "reasonableness" test
Evasion by means of secondary contract
Arbitration agreements
III CIRCUMSTANCES WHERE CONTROL DOES NOT APPLY
International supply contracts
Choice of law clauses
Saving for other relevant legislation
Application
IV CONSEQUENTIAL AND OTHER AMENDMENTS
(Omitted)
dule 1. Scope of sections 7, 8, 9 and 12
dule 2. "Guidelines" for application of reasonableness test
dule 3. (Omitted)
Whole document
imit the extent to which civil liability for breach of contract,
or
negligence or other breach of duty, can be avoided by
means of
ract terms and otherwise; and to restrict the
enforceability of
tration agreements. [1 December 1990] L. N. 38 of 1990
PART I PRELIMINARY
hort title
Ordinance may be cited as the Control of Exemption Clauses
Ordinance.
nterpretation and application
In this Ordinance--
iness" includes a profession and the activities of a public
body, a
ic authority, or a board, commission, committee or
other body
inted by the Governor or Government;
ds" has the same meaning as in the Sale of Goods Ordinance (Cap.
26);
ligence" means the breach--
of any obligation, arising from the express or implied terms
of a
ract, to take reasonable care or exercise reasonable skill
in the
ormance of the contract;
of any common law duty to take reasonable care or exercise
reasonable
l (but not any stricter duty);
of the common duty of care imposed by the Occupiers
Liability
nance (Cap. 314); "notice" includes an announcement, whether or
not in
hing, and any other communication or pretended communication;
sonal injury" includes any disease and any impairment of
physical or
al condition.
In the case of both contract and tort, sections 7 to 12 apply
(except
e the contrary is stated in section 11 (4)) only to
business
ility, that is liability for breach of obligations or duties
arising--
from things done or omitted to be done by a person in the course
of a
ness (whether his own business or another's); or
from the occupation of premises used for business purposes
of the
pier, and references to liability are to be read
accordingly; but
ility of an occupier of premises for breach of an obligation or
duty
rds a person obtaining access to the premises for
recreational or
ational purposes, being liability for loss or damage
suffered by
on of the dangerous state of the premises, is not a business
liability
he occupier unless granting that person such access for the
purposes
erned falls within the business purposes of the occupier.
In relation to any breach of duty or obligation, it is
immaterial
her the breach was inadvertent or intentional, or whether
liability
it arises directly or vicariously.
1977 c. 50 ss. 1&14 U. K.]
he "reasonableness" test
In relation to a contract term, the requirement of reasonableness
for
purposes of this Ordinance and section 4 of the
Misrepresentation
nance (Cap. 284) is satisfied only if the court or
arbitrator
rmines that the term was a fair and reasonable one to be
included
ng regard to the circumstances which were, or ought reasonably
to have
, known to or in the contemplation of the parties when the
contract
made.
In determining for the purposes of section 11 or 12 whether a
contract
satisfies the requirement of reasonableness, the court or
arbitrator
l have regard in particular to the matters specified in
Schedule 2;
this subsection does not prevent the court or arbitrator from
holding,
ccordance with any rule of law, that a term which purports to
exclude
estrict any relevant liability is not a term of the contract.
In relation to a notice (not being a notice having
contractual
ct), the requirement of reasonableness under this
Ordinance is
sfied only if the court or arbitrator determines that it would
be fair
reasonable to allow reliance on it, having regard to
all the
umstances obtaining when the liability arose or (but for the
notice)
d have arisen.
In determining (under this Ordinance or the
Misrepresentation
nance (Cap. 284)) whether a contract term or notice
satisfies the
irement of reasonableness, the court or arbitrator shall have
regard
articular (but without prejudice to subsection (2) to whether
(and, if
to what extent) the language in which the term or notice is
expressed
language understood by the person as against whom another
person
s to rely upon the term or notice.
Where by reference to a contract term or notice a person
seeks to
rict liability to a specified sum of money, and the question
arises
er this Ordinance or the Misrepresentation Ordinance (Cap.
284))
her the term or notice satisfies the requirement of
reasonableness,
court or arbitrator shall have regard in particular (but
without
udice to subsection (2) or (4)) to--
the resources which he could expect to be available to him for
the
ose of meeting the liability should it arise; and
how far it was open to him to cover himself by insurance.
It is for the person claiming that a contract term or notice
satisfies
requirement of reasonableness to prove that it does.
1977 c. 50 s. 11 U. K.]
Dealing as consumer"
A party to a contract "deals as consumer" in relation to another
party
he neither makes the contract in the course of a business nor
holds
elf out as doing so;
the other party does make the contract in the course of a
business;
in the case of a contract governed by the law of sale of goods
or by
ion 12, the goods passing under or in pursuance of the contract
are of
pe ordinarily supplied for private use or consumption.
Notwithstanding subsection (1), on a sale by auction or by
competitive
er the buyer is not in any circumstances to be regarded as dealing
as
umer.
It is for the person claiming that a party does not deal as
consumer
rove that he does not.
1977 c. 50 s. 12 U. K.]
arieties of exemption clause
To the extent that this Ordinance prevents the
exclusion or
riction of any liability it also prevents--
making the liability or its enforcement subject to
restrictive or
ous conditions;
excluding or restricting any right or remedy in respect
of the
ility, or subjecting a person to any prejudice in consequence of
his
uing any such right or remedy;
excluding or restricting rules of evidence or procedure, and (to
that
nt) sections 7, 10, 11 and 12 also prevent excluding or
restricting
ility by reference to terms and notices which exclude or
restrict
relevant obligation or duty.
An agreement in writing to submit present or future
differences to
tration is not to be treated under this Ordinance as
excluding or
ricting any liability. [cf. 1977 c. 50 s. 13 U. K.]
ower to amend Schedules 1 and 2
Legislative Council may by resolution amend Schedules 1 and 2.
PART II CONTROL OF EXEMPTION CLAUSES
dance of liability for negligence, breach of contract, etc.
egligence liability
A person cannot by reference to any contract term or to a notice
given
ersons generally or to particular persons exclude or
restrict his
ility for death or personal injury resulting from negligence.
In the case of other loss or damage, a person cannot so
exclude or
rict his liability for negligence except in so far as the
term or
ce satisfies the requirement of reasonableness.
Where a contract term or notice purports to exclude or
restrict
ility for negligence a person's agreement to or awareness of it
is not
tself to be taken as indicating his voluntary acceptance of any
risk.
1977 c. 50 s. 2 U. K.]
iability arising in contract
This section applies as between contracting parties where one of
them
s as consumer or on the other's written standard terms of
business.
As against that party, the other cannot by reference to any
contract
--
When himself in breach of contract, exclude or restrict any
liability
is in respect of the breach; or
claim to be entitled--
to render a contractual performance substantially different from
that
h was reasonably expected of him; or
in respect of the whole or any part of his contractual obligation,
to
er no performance at all,
pt in so far as (in any of the cases mentioned above
in this
ection) the contract term satisfies the requirement of
reasonableness.
1977 c. 50 s. 3 U. K.]
nreasonable indemnity clauses
A person dealing as consumer cannot by reference to any contract
term
ade to indemnify another person (whether a party to the
contract or
in respect of liability that may be incurred by the
other for
igence or breach of contract, except in so far as the contract
term
sfies the requirement of reasonableness.
This section applies whether the liability in question--
is directly that of the person to be indemnified or is incurred
by him
riously;
is to the person dealing as consumer or to someone else. [cf. 1977
c.
. 4 U. K.]
ility arising from sale or supply of goods
"Guarantee" of consumer goods
In the case of goods of a type ordinarily supplied for private
use or
umption, where loss or damage--
arises from the goods proving defective while in consumer use;
and
results from the negligence of a person concerned in the
manufacture
istribution of the goods, liability for the loss or damage
cannot be
uded or restricted by reference to any contract term or
notice
ained in or operating by reference to a guarantee of the goods.
For these purposes--
goods are to be regarded as "in consumer use" when a person is
using
, or has them in his possession for use, otherwise than
exclusively
the purposes of a business; and
anything in writing is a guarantee if it contains or
purports to
ain some promise or assurance (however worded or
presented) that
cts will be made good by complete or partial replacement,
or by
ir, monetary compensation or otherwise.
This section does not apply as between the parties to a contract
under
n pursuance of which possession or ownership of the goods passed.
1977 c. 50 s. 5 U. K.]
Seller's liability
Liability for breach of the obligations arising from section 14
of the
of Goods Ordinance (Cap. 26) (seller's implied undertakings
as to
e, etc.) cannot be excluded or restricted by reference to any
contract
.
As against a person dealing as consumer, liability for breach of
the
gations arising from section 15, 16 or 17 of the Sale of
Goods
nance (Cap. 26) (seller's implied undertakings as to
conformity of
s with description or sample, or as to their quality or fitness
for a
icular purpose) cannot be excluded or restricted by reference to
any
ract term.
As against a person dealing otherwise than as consumer, the
liability
ified in subsection (2) can be excluded or restricted by reference
to
ntract term, but only in so far as the term satisfies the
requirement
easonableness.
The liabilities referred to in this section are not only the
business
ilities defined by section 2 (2), but include those arising under
any
ract of sale of goods. [cf. 1977 c. 50 s. 6 U. K.]
Miscellaneous contracts under which goods pass
Where the possession or ownership of goods passes
under or in
uance of a contract not governed by the law of sale of
goods,
ection (2) to (4) apply in relation to the effect (if any) that
the
t or arbitrator is to give to contract terms excluding or
restricting
ility for breach of obligation arising by implication of law from
the
re of the contract.
As against a person dealing as consumer, liability in respect of
the
's correspondence with description or sample, or their
quality or
ess for any particular purpose, cannot be excluded or
restricted by
rence to any such term.
As against a person dealing otherwise than as consumer, that
liability
be excluded or restricted by reference to such a term, but only
in so
as the term satisfies the requirement of reasonableness.
Liability in respect of--
the right to transfer ownership of the goods, or give possession;
or
the assurance of quiet possession to a person taking
goods in
uance of the contract, cannot be excluded or restricted by
reference
ny such term except in so far as the term satisfies the requirement
of
onableness. [cf. 1977 c. 50 s. 7 U. K.]
r provisions about contracts
Effect of breach on "reasonableness" test
Where for reliance upon it a contract term has to
satisfy the
irement of reasonableness, it may be found to do so and be
given
ct accordingly notwithstanding that the contract has been
terminated
er by breach or by a party electing to treat it as repudiated.
Where on a breach the contract is nevertheless affirmed by a
party
tled to treat as repudiated, this does not of itself
exclude the
irement of reasonableness in relation to any contract term.
1977 c. 50 s. 9 U. K.]
Evasion by means of secondary contract
rson is not bound by any contract term prejudicing or taking
away
ts of his which arise under, or in connection with the performance
of,
her contract, so far as those rights extend to the
enforcement of
her's liability which this Ordinance prevents that
other from
uding or restricting.
1977 c. 50 s. 10 U. K.]
Arbitration agreements
As against a person dealing as consumer, an agreement to submit
future
erences to arbitration cannot be enforced except--
with his written consent signified after the differences in
question
arisen; or
where he has himself had recourse to arbitration in pursuance of
the
ement in respect of any differences.
Subsection (1) does not affect--
the enforcement of an international arbitration agreement
within the
ing of section 2 (1) of the Arbitration Ordinance (Cap. 341);
laced 76 of 1990 s. 2)
the resolution of differences arising under any contract so far
as it
by virtue of Schedule 1, excluded from the operation of section
7, 8,
12.
PART III CIRCUMSTANCES WHERE CONTROL DOES NOT APPLY
International supply contracts
The limits imposed by this Ordinance on the extent to which a
person
exclude or restrict liability by reference to a contract term do
not
y to liability arising under an international supply contract.
The terms of an international supply contract are not subject to
any
irement of reasonableness under section 8 or 9.
For the purposes of this section, an international supply
contract
s a contract--
that is either a contract of sale of goods or a contract under
or in
uance of which the possession or ownership of goods passes;
that is made by parties whose places of business (or, if they
have
, habitual residences) are in the territories of different
States or
in and outside Hong Kong; and
in the case of which--
the goods in question are, at the time of the conclusion
of the
ract, in the course of carriage, or will be carried,
from the
itory of one State to the territory of another, or to or from
Hong
from or to a place outside Hong Kong; or
the acts constituting the offer and acceptance have been done in
the
itories of different States or in and outside Hong Kong; or
) the contract provides for the goods to be delivered to the
territory
State other than that within whose territory the acts
constituting
offer and acceptance were done; or
the acts constituting the offer and acceptance were done in Hong
Kong
the contract provides for the goods to be delivered outside Hong
Kong;
the acts constituting the offer and acceptance were done outside
Hong
and the contract provides for the goods to be delivered to Hong
Kong.
1977 c. 50 s. 26 U. K.]
Choice of law clauses
Where the proper law of a contract is the law of Hong Kong only
by
ce of the parties (and apart from that choice would be the law
of some
r country) sections 7 to 12 do not operate as part of the proper
law.
This Ordinance has effect notwithstanding any contract
term which
ies or purports to apply the law of some other country, where
(either
oth)--
the term appears to the court or arbitrator to have been
imposed
ly or mainly for the purpose of enabling the party imposing
it to
e the operation of this Ordinance; or
in the making of the contract one of the parties dealt as
consumer,
he was then habitually resident in Hong Kong, and the essential
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林木种质资源管理办法
国家林业局
林木种质资源管理办法
(2007年9月8日国家林业局令第22号公布 自2007年11月1日起施行)
第一条 为了加强林木种质资源保护和管理,根据《中华人民共和国种子法》的规定,制定本办法。
第二条 从事林木种质资源收集、整理、鉴定、登记、保存、交流、利用和管理等活动,适用本办法。
第三条 依照《中华人民共和国种子法》的规定,林木种质资源是指林木遗传多样性资源和选育新品种的基础材料,包括森林植物的栽培种、野生种的繁殖材料以及利用上述繁殖材料人工创造的遗传材料。
林木种质资源的形态,包括植株、苗、果实、籽粒、根、茎、叶、芽、花、花粉、组织、细胞和DNA、DNA片段及基因等。
第四条 国家林业局负责全国林木种质资源的保护和管理工作,具体工作由其所属的林木种苗管理机构负责。
省、自治区、直辖市人民政府林业主管部门负责本行政区域内林木种质资源的保护和管理工作,具体工作由其所属的林木种苗管理机构负责。
第五条 国家扶持林木种质资源保护工作。县级以上人民政府林业主管部门应当采取有效措施,加强林木种质资源保护管理工作。
第六条 县级以上人民政府林业主管部门应当积极组织开展林木种质资源科学研究,培训林木种质资源专门技术人员,提高林木种质资源保护管理工作水平。
第七条 国家林业局和省、自治区、直辖市人民政府林业主管部门应当组织林木种质资源普查,建立健全林木种质资源档案。
林木种质资源普查结果等数据资料,应当作为制定林木种质资源保护发展方案、制定和调整可供利用的林木种质资源目录的依据。
第八条 全国林木种质资源普查方案由国家林业局制定;地方林木种质资源普查方案由省、自治区、直辖市人民政府林业主管部门制定。
第九条 县级以上人民政府林业主管部门应当根据保护林木种质资源的需要,有计划地组织收集林木种质资源。
第十条 收集林木种质资源的单位和个人,应当建立原始档案并完整保存档案资料。原始档案记载的内容和格式由国家林业局统一规定。
第十一条 因工程建设、自然灾害等特殊情况使林木种质资源受到威胁的,县级以上人民政府林业主管部门应当及时组织抢救性收集。
第十二条 国家林业局和省、自治区、直辖市人民政府林业主管部门应当组织有关专家对收集的林木种质资源进行鉴定。进行林木种质资源鉴定应当严格执行国家标准和行业标准。
第十三条 国家林业局和省、自治区、直辖市人民政府林业主管部门应当对经过鉴定的林木种质资源或者经批准从境外引进的林木种质资源进行登记。林木种质资源登记实行全国统一编号,编号方法由国家林业局规定。任何单位和个人不得更改或者另行编号。
第十四条 国家林业局建立国家林木种质资源库,根据需要保存具有重要价值或者珍贵的林木种质资源。省、自治区、直辖市人民政府林业主管部门可以建立林木种质资源库、林木种质资源保护区或者林木种质资源保护地,根据需要保存乡土树种、地方主要造林树种等林木种质资源。
第十五条 县级以上人民政府应当分别情况采取原地保存或者建立异地保存库、设施保存库等方式,保存林木种质资源,保障国家和地方林木种质资源库、保护区和保护地正常运转和种质资源安全。异地保存库和设施保存库的林木种质资源应当按照有关规定进行定期检查和检测,及时更新和补充。
第十六条 国家林业局和省、自治区、直辖市人民政府林业主管部门应当根据林木种质资源普查结果及鉴定和保存情况,公布可供利用的林木种质资源目录。
第十七条 利用从林木种质资源库获取的林木种质资源,申请植物新品种权或者其他专利权的,应当事先与林木种质资源管理单位签订协议,并分别报省、自治区、直辖市人民政府林业主管部门或者国家林业局备查。
第十八条 利用林木种质资源库的林木种质资源的单位和个人,应当与林木种质资源库管理单位签订协议,按照协议要求承担反馈利用信息的义务。
第十九条 禁止采集或者采伐国家重点保护的天然林木种质资源。因科学研究、良种选育、文化交流、种质资源更新等特殊情况需要采集或者采伐的,除按照有关法律、法规的规定办理采集或者采伐批准文件外,还应当按照本条第二款、第三款的规定办理审批手续。
采集或者采伐国家林木种质资源库内的,申请人应当向国家林业局提交《采集或者采伐林木种质资源申请表》及申请说明,说明内容应当包括采集或者采伐的理由、用途、方案等;国家林业局应当自受理之日起20个工作日内作出审批决定,并出具《采集或者采伐林木种质资源许可表》;不予审批的,应当书面告知申请人并说明理由。
采集或者采伐国家林木种质资源库以外的,应当经省、自治区、直辖市人民政府林业主管部门批准,批准结果报国家林业局备查。
第二十条 国家林业局和省、自治区、直辖市人民政府林业主管部门应当建立林木种质资源信息数据库,开展林木种质资源动态监测。
第二十一条 国家对林木种质资源享有主权。任何单位和个人向境外提供林木种质资源的,应当经国家林业局批准。
第二十二条 向境外提供或者从境外引进林木种质资源的,应当按照以下程序办理审批手续:
(一)向国家林业局提交《向境外提供林木种质资源申请表》或者《从境外引进林木种质资源申请表》及其说明;
(二)从境外引进林木种质资源的,应当提交引进林木种质资源的用途证明和试验方案材料;
(三)向境外提供林木种质资源的,应当提供相关的项目或者协议文本;
(四)为境外制种引进林木种质资源的,应当提交对外制种协议文本;
(五)国家林业局应当自受理之日起20个工作日内作出审批决定,并出具《向境外提供林木种质资源许可表》或者《从境外引进林木种质资源许可表》;不予审批的,应当书面告知申请人并说明理由。
第二十三条 从境外引进林木种质资源的,应当依法办理检疫审批手续。从境外引进转基因林木种质资源的,应当按照国家林业局公布的《开展林木转基因工程活动审批管理办法》的有关规定办理。
第二十四条 向境外提供的林木种质资源属于国家重点保护野生植物,从境外引进或者向境外提供的林木种质资源属于中国参加的国际公约所限制进出口的野生植物的,除按照本办法第二十一条、第二十二条、第二十三条的规定办理外,还应当按照国家野生植物保护法律法规或者中国参加的国际公约的有关规定办理进出口审批手续。
第二十五条 从境外引进林木种质资源的单位和个人,应当自林木种质资源引进之日起一年之内,向所在地省、自治区、直辖市人民政府林业主管部门提供适量的种质材料,经其登记后移交林木种质资源库保存,并将有关材料报送国家林业局备查。
第二十六条 在林木种质资源普查、收集、鉴定、保存等工作中成绩显著的单位和个人,由县级以上人民政府林业主管部门给予奖励。
第二十七条 林业主管部门及其所属林木种苗管理机构的工作人员在林木种质资源保护管理工作中,滥用职权、玩忽职守、徇私舞弊的,依照国家有关规定给予处分;情节严重、构成犯罪的,依法追究刑事责任。
第二十八条 本办法自2007年11月1日起施行。