중국 법제상 자연인의 민사행위능력

According to the General Principles of the Civil Law of the People’s Republic of China, Capacity for Civil Conduct is divided into three types such as Full Capacity for Civil Conduct, Limited Capacity for Civil Conduct and No Capacity for Civil Conduct. A person without or with limited capacity for civil conduct shall be determined by the declaration of the people's court except minor. Declared elements are as follows. (1)The person being declared is a mental patient. Mental disease is not a legal concept but a medical concept. The concept "mentally ill person" means a person suffering from mental illness(including mental retardation) who does not have the capacity to make judgments to protect himself and to understand the consequences of his acts. Alcoholics, drug addicts or someone with economic difficulties can not be declared to be a mentally ill person. (2) Having an application by an interested party. The "interested party" means a legally interested party, including the person shall act as guardian for a mentally ill person such as his/her spouse, parent, adult child and any other near relative(GPCL : GENERAL PRINCIPLES OF THE CIVIL LAW OF THE PEOPLE S REPUBLIC OF CHINA, §17). If none of the persons listed in this article is available to be the guardian or the guardian does not apply for a declaration, the unit to which the mentally ill person belongs, the neighbourhood or village committee in the place of his residence or the civil affairs department can apply for a declaration. And if the mentally ill person regains consciousness, he/she can be an applicant. (3) Having a declaration of the people's court. When a mentally ill person is declared to be without or with limited capacity for civil conduct, his/her guardian shall be appointed, and his/her spouse, parent, adult child and any other near relative shall act as guardian(GPCL.§17). Any other closely connected relative or friend also can act as guardian if having approval from the unit to which the mentally ill person belongs or from the neighbourhood or village committee in the place of his residence. Not only that, if none of the persons listed in the first paragraph of this article is available to be the guardian, the unit to which the mentally ill person belongs, the neighbourhood or village committee in the place of his residence or the civil affairs department shall act as his guardian(GPCL, §17). A citizen aged 18 or over shall be an adult. He/She shall have full capacity for civil conduct, may independently engage in civil activities and shall be called a person with full capacity for civil conduct. A citizen aged 18 or over shall have the right to vote and the right to stand for election in accordance with China's constitution. A citizen who has reached the age of 16 but not the age of 18 and whose main source of income is his/her own labour shall be regarded as a person with full capacity for civil conduct. There are two meanings for "main source of income is his/her own labour". The first one is that a certain amount of income from his/her own labour(wage, bonus etc) to make a living is not temporary or uncertain but stationary. The second one is that the income to make a living is only from his/her own labour without other economic assistance, and the income level is based on the general standard of living residence. A minor aged 10 or over or a mentally ill person who is unable to fully account for his/her own conduct shall be a person with limited capacity for civil conduct. A minor under the age of 10 or a mentally ill person who is unable to account for his/her own conduct shall be a person having no capacity for civil conduct and shall be represented in civil activities by his/her agent ad item. And the guardian of a person without or with limited capacity for civil conduct shall be his/her agent all item.