Data
- Date:
- 00-00-2015
- Country:
- China
- Number:
- Court:
- Chongqing Wanzhou District People’s Court
- Parties:
- Xie Hao v Liu Xiaoyong
Keywords
DISPUTE BETWEEN TWO CHINESE INDIVIDUALS - REFERENCE TO THE UNIDROIT PRINCIPLES AS A MEANS TO SUPPLEMENT APPLICABLE DOMESTIC LAW
"COMMENTS" BY CHINESE JUDGES ON THEIR DECISIONS - NOT LEGALLY BINDING - OBJECTIVE TEST IN CASE OF THREAT - REFERENCE TO ART. 3.2.6 OF THE UNIDROIT PRINCIPLES - SOLUTION ADOPTED BY THE UNIDROIT PRINCIPLES PREFERABLE OVER THE SUBJECTIVE TEST APPLIED IN CHINESE LAW
Abstract
The plaintiff creditor stalked and pressed the defendant debtor until the latter agreed in writing to pay the debt owed; the plaintiff’s aggressive conduct was held not to constitute ‘duress’, which would have rendered the contract voidable by the defendant.
In their comment, two judges from the first-instance court, whose decision was confirmed by the appellate court, suggested that to reduce the difficulties in applying the above subjective test, Chinese law should adopt the objective test under Article 3.2.6 of the PICC, which requires the ‘threat’ to be ‘so imminent and serious as to leave the [threatened party] no reasonable alternative’. This suggestion seems to have been adopted by both courts in deciding the above case: the defendant debtor was held to have had reasonable alternatives including refusing to pay, reporting to police, asking for assistance, or offering a security for the debt. This amounts to an extraordinary ‘implicit’ application of a non-binding international instrument to a domestic case, even though it remains to be seen whether such a reform of the domestic subjective test might be endorsed more widely.
Summary of the decision extracted from Qiao Liu, The PICC in Chinese Courts, Uniform Law Review, Volume 27, Issue 3, pp. 472–491
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