CHAPTER XVII
CONTRACTS FOR CARRIAGE
Section 1
Basic Principles
Article 288
A carriage contract is a contract under which the carrier undertakes to carry the passenger or goods to the agreed place, while the passenger, sender or consignee pays fare or freight.
Article 289
Carriers engaged in public transportation shall not refuse the normal and reasonable requirement for carriage by the passenger or the sender.
Article 290
The carrier shall carry passengers or goods to the agreed place safely within the agreed period or reasonable period.
Article 291
The carrier shall carry the passenger or goods to the agreed place in an agreed or usual line of carriage.
Article 292
The passenger, the sender or the consignee shall pay for the agreed price or freight. If the carrier fails to carry in an agreed or reasonable line which incurs the additional price or freight, the passenger, the sender or the consignee may refuse the payment of the additional fare or freight.
Section 2
Contracts for Carriage of Passengers
Article 293
A contract of carriage of passengers is formed at the time when the carrier delivers the ticket to the passenger, except for otherwise agreed by parties or provided by trade usage.
Article 294
Any passenger boarding shall hold a valid passenger ticket. A passenger traveling without a ticket or taking a higher class berth than booked or going beyond the distance paid for or taking an invalid ticket shall pay for the fare or the excess fare, and the carrier may, according to the relevant regulations, charge additional fare. Should any passenger refuse to pay, the carrier may refuse carriage.
Article 295
If the passenger is unable to ride conforming to the time stated on the ticket due to his own cause, he shall return or change the ticket within the agreed time. If the return or change is overdue, the carrier may refuse the refund for return of the ticket and be relieved from the duty for carriage.
Article 296
The passenger shall take luggage within the limited quantity agreed. Procedure for consignment shall be conducted if the luggage exceeds the limited quantity.
Article 297
No passenger may take on board or pack in their luggage any article of an inflammable, explosive, poisonous, corrosive or radioactive nature or other dangerous goods that would endanger the safety of life and property on board or other contraband goods.
The carrier may have the contraband by the passenger in breach of the provisions of the preceding paragraph discharged, destroyed or sent over to the appropriate authorities. Where the passenger insists on taking or packing in luggage the contraband, the carrier may refuse carriage.
Article 298
The carrier shall inform the passenger the important causes concerning the inability of usual carriage and safety items that shall be paid attention to.
Article 299
The carrier shall carry the passenger in accordance with the time and vehicle number stated in the passenger ticket. If the carrier delays, it shall, as requested by the passenger, make arrangement for another number of vehicle or refund the amount of ticket fare.
Article 300
If the carrier changes carriage vehicle without the passenger's consent and thereby reduces the service standard, it shall, as requested by the passenger, refund or reduce the ticket fare. If the service standard is improved due to the change, no additional fee shall be imposed.
Article 301
The carrier shall, during the period of carriage, try best to help passengers with emergent disease, in childbirth or in danger.
Article 302
The carrier shall be liable for the injury to or death of the passenger during the period of carriage, except for the case where the carrier can prove that the injury or the death is caused due to the passenger's intentional act, material negligence or the health condition of his.
The preceding paragraph is applied to passengers exempted from ticket or holding preferential ticket according to regulations or passengers without ticket upon the carrier's consent.
Article 303
The carrier at fault shall be liable for the compensation for the damage or loss of the passenger's articles taken along with during the process of the carriage, except for the case where the carrier proves no fault in himself.
As to the damage or loss of luggage consigned, relevant provisions of carriage of goods shall be applied.
Section 3
Contracts for Carriage of Goods
Article 304
The sender shall declare accurately to the carrier, when having the goods consigned, such necessary items relevant to the carriage as the name of the consignee or the consignee by instruction, the name, nature, weight and quantity of the goods, receiving place etc.
The sender shall be liable for the compensation of damages to the carrier caused by the inaccurate declaration or important omission.
Article 305
If the procedure of review, approval and inspection is required for the carriage of goods, the sender shall deliver documents with completed relevant procedures to the carrier.
Article 306
The sender shall pack the goods in an agreed way. If the way of package is not provided in the contract or the provision is ambiguous, provisions of Article 156 of this Law shall be applied.
The carrier may refuse the carriage in case that the sender violates the preceding paragraph.
Article 307
At the time of consignment of dangerous articles of inflammable, implosive, poisonous, corrosive or radioactive nature, the sender shall, in compliance with the state's regulations governing the carriage of dangerous goods, have them properly packed, distinctly marked and labeled and notify the carrier in writing of the name and nature of the goods and precautions to be taken.
If the sender violates the preceding paragraph, the carrier may refuse the carriage, and may adopt relevant measures to avoid the occurrence of losses and the cost caused thereby shall be borne by the sender.
Article 308
Before the delivery of goods to the consignee by the carrier, the sender shall have right to request the carrier to stop carriage, return goods, change destination place or deliver the goods to another consignee, but shall compensate the carrier losses caused thereby.
Article 309
Upon the arrival of shipped goods, the carrier, in knowledge of the consignee, shall notify the consignee in time and the consignee shall claim the goods in time. The consignee shall pay due charge for deposit if the claim to the goods exceeds the time limit.
Article 310
The consignee shall inspect the goods within the period agreed when claiming the goods. If the period for inspecting the goods is not provided in the contract or the provision is ambiguous, and can not be ascertained according to Article 61 of this Law, the condignee shall inspect the goods within reasonable period. In absence of objection by the consignee to the quantity, damage etc. of the goods within the agreed period or reasonable period, the delivery of the goods shall be deemed to be prima facie evidence of the delivery of the goods by the carrier as described in the transport documents.
The consignee's right for compensation for losses by the carrier extinguishes if the consignee fails to exercise the right within 6 months after the claim of the goods.
Article 311
The carrier shall be liable for compensation for the damage and loss of goods during transportation, except the cases under which the carrier proves that the damage or loss of the goods is caused by force majeuer, or the natural quality or reasonable loss and damage of the goods itself or the fault of the consignor or the consignee.
Article 312
If the parties agree on the amount of compensation for the damage or the loss of the goods, the agreement shall be applied; if the parties fails to reach an agreement or the agreement is ambiguous and the amount of compensation can not be ascertained according to Article 61 of this Law, the market price of the goods at the destination place at the time of delivery or at the time that the goods is to be delivered shall apply. Where laws or administrative regulations provide otherwise as to the calculating manner and limits for the amount of the compensation, the said provisions shall apply accordingly.
Article 313
Where a joint carriage by two or above carriers with a same transportation means is adopted, the carrier who concludes the contract with the consignee shall be liable for the whole period of carriage. If losses occur in a certain stage of carriage, the carrier concluding contracts with the consignee and the carrier for that certain stage shall be liable jointly and severally.
Article 314
The carrier shall not claim for the payment of freight if the goods perishes due to force majeure during the process of carriage and the freight has not been paid yet. The consignee may claim the refund of the freight if the payment has been made.
Article 315
If the sender or the consignee fails to pay the freight, deposit fees or other transport charges, the carrier shall have the right of lien on the relevant goods transported, except for otherwise agreed by the parties.
Article 316
If the consignee is not clear or the consignee refuses to claim the goods without fare excuse, the carrier may, according to Article 101 of this Law, deposit the goods.
Section 4
Contracts for Multi-modal Transport
Article 317
The multi-modal transport operator is responsible for the performance of a multi-modal transport contract or the procurement of the performance therefore, and enjoys a carrier's right and take a carrier's duty over entire transport.
Article 318
The multi-modal transport operator may agree with the carriers of the different modes defining their responsibilities with regard to the different sections of the transport under the multi-modal transport contracts. However, such agreement shall not affect the responsibility of the multi-modal transport operator with respect to the entire transport.
Article 319
When the goods are taken in charge by the multi-modal transport operator, it shall issue a multi-modal transport document which, at the option of the consignor, shall be in either negotiable or non negotiable form.
Article 320
The consignor shall be liable for compensation for the losses incurred to the multi-modal transport operator due to the wrongdoing done by the consignor at the consignment of the goods, even if the consignor has already transferred the multi-modal transport document.
Article 321
If loss of or damage to the goods has occurred in a certain section of the transport, the provisions of the relevant laws and regulations governing that specific section of the multi-modal transport shall be applicable to matters concerning the liability of the multi-modal transport operator and the limitation thereof. If the section of the transport where loss of or damage to the goods occurs cannot be ascertained, the liability for damages shall be borne according to this Chapter.
CHAPTER XVIII
CONTRACTS FOR TECHNOLOGY
Section 1
Basic Principles
Article 322
A technology contract is a contract concluded by parties to determine rights and duties of each other as to technology development, transfer, consultancy or service.
Article 323
The conclusion of a technology contract shall facilitate the progress of science and technology
, and accelerate the transfer, application and dissemination of the achievements of science and technology.
Article 324
The provisions of a technology contract shall be agreed upon by the parties, and normally contain the following'.
(1) title of the project
(2) contents, scope and requirements of the object
(3) plan, schedule, time limits, place, region and manner of performance
(4) maintenance of confidentiality of technological information and materials
(5) liability for risks
(6) ownership of technical achievements and measures for sharing of profits
(7) standards and methods of inspection and acceptance
(8) price or remuneration and means of payment
(9) liquidated damages or methods for computing the amount of damages
(1O) methods for settling disputes
(11) interpretation of terms and technical expression
Background materials on the technology, reports on feasibility studies and technological appraisal, project descriptions and plans, technological standards, technological norms, original designs and documents on technological processes and other technical documents, that are pertinent to the performance of the contract may, by agreement between the parties, become an integral part of the contract.
Where a patent is involved in a technology contract, it shall be indicated as to the name, patent applicant and patentee of inventions and creations, the date and number of application, patent number and valid period for the right of patent.
Article 325
Parties of technology contract shall agree on the manner for the payment of price. remuneration or use fee. Either calculation or payment in one time or calculation in one time and payment by installments or payment by a percentage deduction or payment by a percentage deduction plus advance payment for starting may be adopted.
Where the measure of payment by a percentage deduction is adopted, certain percentage may be deducted according to the product price, value added by the implementation of patent and use of technical secrets, profit or the amount of product sales. It may also adopt other measure agreed. The Percentage deducted may choose fixed percentage, percentage increased by years or percentage reduced by years.
Where a percentage deduction 5 adopted, parties shall provide in the contract relevant measures concerning the inspection of accounts.
Article 326
Where the right to use or to transfer a job-related technological achievement belongs to a legal entity or other organization, the legal entity or other organization may conclude technology contracts concerning such a technological achievement. The legal entity or other organization shall deduct a certain percentage from the proceeds realized from the use and transfer of the job-related technical achievements and reward or pay remuneration to the individuals who accomplished the technological achievement. Where the legal entity or other organization concludes a technology contract to transfer the job-related achievements, the individual who accomplished the achievements shall enjoy a right of priority under same condition.
The job-related technological achievement is a technological achievement obtained by a person in carrying out a task of a legal entity or other organization or mainly through using the technological and material means of such a legal entity or other organization.
Article 327
The right to use and transfer a non?ob-related technological achievement shall belong to the individuals who accomplished it. who may conclude technology contracts concerning such a non-job-related technological achievement.
Article 328
An individual who has accomplished a technological achievement is entitled to be named as such in the documents related to the technological achievement and to receive certificates of honor and awards.
Article 329
A technology contract that illegally monopolizes technology, impedes technical progress or infringes upon other's technical achievements is void.
Section 2
Contract for Technology Development
Article 330
Technology development contract refers to a contract concluded between parties for the purpose of conducting research in and development of new technologies, new products, new processes and new materials as well as their systems.
Technology development contract includes commission development contract and cooperative development contract.
The contract of technology development shall adopt a written form.
Contracts concluded by parties to implement the transfer of scientific and technical achievements that have a value of industrial application shall refer to provisions concerning technology development contract.
Article 331
The commissioning party of the commission development contract shall, according to contract, pay funds and remuneration for research and development, provide technical materials and original data, accomplish coordinated undertakings and accept the result of research and development on schedule.
Article 332
The party undertaking research and development of the commission development contract shall, according to the contract, work out and implement research and development plans, use research and development funds in a rational way, complete research and development work and deliver the result on schedule, provide relevant technical materials and necessary technical guidance, and help the commissioning party master the results of research and development.
Article 333
The commissioning party shall be liable for the breach of contract where it breaches the contract and thereby causes a standstill, delay or failure in research and development work.
Article 334
The party undertaking research and development shall be liable for the breach of contract where it breaches the contract and thereby causes a standstill or delay in research and development work.
Article 335
The parties to a cooperative contract shall, according to the contract, make investment including contribution of technology as investment, take part in research and development according to the division of work, and cooperate and coordinate with research and development work.
Article 336
Parties to a cooperative contract shall be liable for the breach of contract if they breach the contract and thereby causes a standstill, delay or failure in research and development work.
Article 337
If the performance of a technology development contract is senseless because the technology that is the object of the technology development contract has been made public by others, the parties may discharge tne contract.
Article 338
The liability for risks involved in a failure or partial failure in research and development caused by insurmountable technical difficulties occurring in the process of performing a technology development contract shall be agreed by the parties in the contract. If the parties fail to agree on such a provision or the agreed provision is ambiguous, and it cannot be ascertained under Article 61 of this Law, liability shall be rationally shared by the parties.
When one party discovers that the situation mentioned in the preceding paragraph is likely to cause a failure or partial failure in research and development, it shall promptly inform the other party of the situation and take appropriate measures to reduce losses; If it fails to inform promptly and to take appropriate measures and as a result the losses are aggravated, it shall bear the liability for the aggravated part of the losses.
Article 339
With respect to inventions and creations made in execution of a commission for development, the right to apply for a patent shall, unless otherwise provided in the contract, belong to the party that undertakes research and development. If the party that undertakes research and development is granted a patent right, the depositor may exploit that patent freely.
If the party that undertakes research and development assigns the right to apply for a patent, the commissioning party shall enjoy a right of priority under same condition.
Article 340
With respect to inventions or creations made through cooperative development, the right to apply for a patent shall, unless otherwise provided for in the contract, be jointly owned by the parties that carry out the cooperative development. If one party assigns its part of jointly owned right to apply for a patent, other parties may have priority to the assignment under same condition.
If one party to a cooperative development contract declares that it renounces its part of the joint right to apply for a patent, the other party may apply for it alone or the other parties may apply for it jointly. If the right of patent is granted, the party that has renounced its right to apply for the patent may exploit the patent freely.
If one party to a cooperative development contract does not agree to apply for a patent, the other party or parties may not apply for it.
Article 341
The right to use and transfer non-patent technological achievements made through commission development or cooperative development and the methods of distributing benefits shall be agreed by the parties in the contract.
If the parties fails to agree on such a provision or the provision agreed is ambiguous, and it can not be ascertained according to Article 61 of this Law, each party shall have the right to use and transfer the achievements, but the party undertaking research and development under a commission development
contract may not transfer the results of research and development to a third party before delivery to the depositor.
Section 3
Contracts for Technology Transfer
Article 342
Technology transfer Contracts include the transfer of patent rights, the transfer of rights to apply for patents, the transfer of non-patent technology, the licensing of patent exploitation and the import of technology.
Technology transfer contract shall adopt a written form.
Article 343
Technology transfer contracts may stipulate the scope of patent exploitation or of the use of technical secrets by the transferor or the transferee, except that no restriction on technological competition or technological development may be placed in any contract clause.
Article 344
A contract for patent exploitation license shall be valid only within the duration of that patent right Upon the termination or invalidation of the patent right, the patentee may not conclude with others any contract for patent exploitation license.
Article 345
The transferor of a contract for patent exploitation license shall, according to the contract. permit the transferee to exploit the patent, deliver the technical materials related to the exploitation of the patent and provide necessary technical guidance.
Article 346
The transferee of a contract for patent exploitation license shall, according to the contract, exploit the patent and not to permit any third party except as provided for in the contract, and pay use fees accordingly.
Article 347
The transferor of a contract for the assignment of technical secrets shall, according to the contract, provide technical materials and technical guidance, guarantee the practical applicability and reliability of the technology, and undertake the obligations of maintaining confidentiality.
Article 348
The transferee of a contract for the assignment of technical secrets shall, according to the contract, use the technology, pay use fees and undertake the obligations of maintaining confidentiality.
Article 349
The transferor of a technology transfer contract shall ensure that it is the lawful owner of the technology to be provided and that the technology provided is complete, accurate, effective and capable of attaining the technical targets specified in the contract.
Article 350
The transferee of a technology transfer contract shall undertake the obligation to preserve, in accordance with the scope and duration agreed upon by the parties, the non-open technical secrets contained in the technology provided by the transferor.
Article 351
If the transferor fails to transfer technology according to the Contract, it shall, in addition to returning part or all of the use fees, be liable for the breach of Contract; if the transferor exploits the patent or uses the technical secrets beyond the scope stipulated in the contract, or unilaterally permits, in violation of contractual stipulations, a third party to exploit the patent or use the technical secrets, it shall stop its breaching acts and be liable for the breach of contract; if the transferor violates the obligations of maintaining confidentiality stipulated in the contract, it shall be liable for the breach of contract.
Article 352
If the transferee fails to pay the use fees in accordance with the contract, it shall make up such payment and, in addition, pay liquidated damages according to the contract; if it fails to pay such overdue use fees or to pay liquidated damages, it must stop exploiting the patents or using the technical secrets, return the technical materials, and be liable for the breach of contract; if it exploits the patents or uses the technical secrets beyond the scope stipulated in the contract, or permits, without the consent of the transferor, a third party to exploit the patents or use the technical secrets, it shall stop its breaching acts and be liable for the
breach of Contract; if it violates the obligation of maintaining confidentiality stipulated in the contract, it shall be liable for the breach of contract.
Article 353
If the exploitation of a patent or the use of the technical secrets by the transferee in accordance with the contract leads to an infringement upon the lawful rights and interests of others, the transferor shall bear the liability, unless otherwise agreed upon by the parties.
Article 354
The parties may, in accordance with the principle of mutual benefit, stipulated in a contract the method of sharing technological achievements obtained from follow-up improvements made in the exploitation of a patent or the use of technical secrets. In the absence of such contractual stipulations. and it can not be ascertained according to Article 61 of this Law, neither party shall have the right to share the technological achievements made by the other party from follow-up improvements.
Article 355
Where laws or administrative regulations provide otherwise to contracts of technology introcuction or contracts of patent and patent application, the said provisions shall apply accordingly.
Section 4
Contracts for Technical Consultancy
Contracts for Technical Service
Article 356
Technical consultancy contracts include contracts providing feasibility studies, technological forecasts, special technical investigations and analytical evaluation reports regarding a specific technological project.
Technical Service Contracts refer to contracts under which one party undertakes to solve particular technical problems for the other party by utilizing its technical knowledge, excluding contracts for onstruction projects and contracts for works.
Article 357
The commissioning party of a technical consultancy contract shall, according to the contract, elucidate the questions posed for consultation, provide for technological background information as ~ell as the relevant technical material and data, and accept from the consulting party the result of its work and to pay the remuneration.
Article 358
The consulting party of a technical consultancy contract shall, within the terms provided in .the contract, complete consultation reports or answer questions from the commissioning party and provide consultation reports that meet the requirements stipulated in the contract.
Article 359
If the commissioning party under a technical consultancy contract fails to provide necessary data and materials in accordance with the contract and thereby affects the progress and quality of work, or refuse to accept or delay the acceptance of the achievements, it shall not claim the refund of the remuneration already paid and shall pay the outstanding remuneration.
If the consulting party under a technical consultancy contract fails to provide its ~ 'on report according to the schedule or if the report provided does not conform to the stipulations of the contract, it shall take such liability for breach of contract as reduction or forfeiture of its remuneration.
Any losses resulting from the decisions made by the depositor under a technical consultancy contract on the basis of the consultation reports and advice of the consulting party that meet the requirements stipulated in the contract shall, unless otherwise agreed in the contract, be borne by the depositor.
Article 360
The commissioning party of a technical service contract shall, according to the contract. provide the servicing party with work facilities, accomplish coordinated undertakings, accept the result of work and pay remuneration.
Article 361
The servicing party of a technical service contract shall, according to the contract, accomplish services, solve technical problems, guarantee the quality of its work and impart to the other party its knowledge concerning the solution of technical problems.
Article 362
If the commissioning party under a technical service contract breaches the contract and thereby affects the progress and quality of the work, or fails to accept the result of the work from the servicing party or fails to accept it according to schedule, it shall not refund the remuneration already paid and shall pay the outstanding remuneration.
If the servicing party under a technical service contract fails to accomplish its services in accordance with the contract, it shall take the liability of forfeiting its remuneration.
Article 363
Unless otherwise provided for in the contract, any new technical achievements made by the consulting party or the servicing party in performing a technical consultancy contract or a technical service contract by utilizing the technical materials and work facilities provided by the commissioning party shall belong to the consulting party or the servicing party, and any new technical achievements made by the commissioning party by utilizing the results of work of the consulting party or the servicing party shall belong to the commissioning party.
Article 364
Where laws or administrative regulations provide otherwise as to contracts of technology intermediary and technology training, the said provisions shall apply accordingly.
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