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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浙江省文化市场综合行政执法管理办法
浙江省人民政府
浙江省文化市场综合行政执法管理办法
省政府令 第253号
《浙江省文化市场综合行政执法管理办法》已经省人民政府第16次常务会议审议通过，现予公布，自2009年1月1日起施行。
省长
二○○八年十月二十三日
第一条为了加强文化市场管理，规范文化市场综合行政执法行为，保护公民、法人和其他组织的合法权益，根据《中华人民共和国行政处罚法》及有关法律、法规，制定本办法。
第二条本办法所称文化市场综合行政执法，是指市、县（市、区）文化广播电视新闻出版行政管理部门（以下简称委托机关）通过委托方式，依法将文化市场的监督检查、行政强制、行政处罚等事项，委托文化市场综合行政执法机构(以下简称综合执法机构)实施的行政执法活动。
综合执法机构所需经费列入同级财政预算。
第三条文化市场综合行政执法应当遵循合法、公正、公开的原则，坚持秉公执法、文明执法，接受社会监督。
第四条文化市场综合行政执法的范围是：
（一）营业性演出，音像制品经营，娱乐场所经营，艺术品经营，电影发行、放映，互联网上网服务营业场所经营，社会艺术水平考级，非物质文化遗产保护，文物保护和文物经营；
（二）广播影视节目制作、经营和传送，广播电视设施建设、保护和安全播出，卫星电视广播地面接收设施安装、设置和使用，互联网视听节目服务，公共视听载体播放视听节目服务；
（三）出版物的出版、印刷（复制）、发行、进出口等经营，著作权（版权）保护，包装装潢印刷品及其他印刷品印刷经营；
（四）法律、法规、规章规定的其他文化市场活动。
第五条委托机关委托综合执法机构实施行政执法，应当依法以书面形式明确具体的委托事项、权限，并将委托文件、依据等材料分别报送本级人民政府和上一级文化广播电视新闻出版行政管理部门备案。
第六条综合执法机构应当建立健全行政执法相关制度，在受委托的权限内依法履行职责，并接受委托机关的监督。
综合执法机构应当建立投诉、举报工作制度，公布投诉、举报电话，对投诉、举报文化市场活动中的违法行为依法及时受理和调查处理。
第七条委托机关和上级业务主管部门应当加强对执法人员的政治理论和业务知识培训，提高执法队伍的整体素质和执法水平。
综合执法机构执法人员应当经过行政执法资格考试合格，取得《浙江省行政执法证》。
综合执法机构应当具备必要的设施、设备等执法条件。
第八条综合执法机构实施行政执法调查或者现场检查时，应当制作调查、检查笔录，并由执法人员和当事人签名。当事人拒绝签名或者不能签名的，应当注明原因。
综合执法机构执法人员依法执行职务时，应当出示《浙江省行政执法证》。
第九条综合执法机构执法人员与当事人有直接利害关系的，应当回避。执法人员的回避，由综合执法机构负责人决定；综合执法机构负责人的回避，由委托机关负责人决定。
第十条综合执法机构在行政执法活动中依法对有关物品、工具采取暂扣、封存或者对证据采取先行登记保存措施的，应当经委托机关负责人批准，并向当事人出具加盖委托机关公章的书面通知书，制作清单，载明财物名称、型号、数量、保存地点等事项，由执法人员和当事人签名。
第十一条依法采取暂扣、封存措施的，应当根据不同情况对暂扣、封存的财物作出以下处理：
（一）经查明不宜继续暂扣、封存，或者暂扣、封存期限届满的，依法解除暂扣、封存；
（二）依法应当没收暂扣、封存的违法财物的，作出没收违法财物的行政处罚决定，予以没收；
（三）根据法律规定可予以拍卖或者以其他方式处置的，依法予以拍卖、处置。
第十二条依法采取先行登记保存措施的，应当根据不同情况对先行登记保存的证据作出以下处理：
（一）经复制、摄录等方式进行证据保全后，依法解除先行登记保存；
（二）需要暂扣、封存有关证据的，依法决定对有关证据采取暂扣、封存等强制措施；
（三）依法没收先行登记保存的违法财物的，按照行政处罚决定执行。
第十三条综合执法机构对暂扣、封存或者先行登记保存的财物，应当妥善保管，不得使用、损毁、遗失。
对依照本办法第十一条、第十二条规定解除暂扣、封存、先行登记保存的财物，综合执法机构应当通知当事人在规定期限内认领；当事人不明确或者经通知不认领的，应当发布财物认领公告；自公告之日起满三个月不认领的，可以按无主财物依法处理。
第十四条对违法行为依法实施行政处罚的，在作出行政处罚决定前，综合执法机构应当告知当事人作出行政处罚决定的事实、理由和依据以及当事人依法享有的权利。
第十五条在作出下列行政处罚决定之前，应当告知当事人有要求举行听证的权利：
（一）罚款数额或者没收财物价值，非经营性违法行为2000元以上、经营性违法行为5万元以上,但法律、法规另有规定的，从其规定；
（二）责令停产停业；
（三）吊销许可证。
当事人在收到听证权利告知书之日起3日内提出听证要求的，应当依法组织听证。
第十六条行政处罚决定应当以委托机关的名义作出。
依法作出本办法第十五条第一款规定的行政处罚或者案情复杂需要集体讨论的，应当由委托机关负责人集体讨论决定。
第十七条在文化市场综合行政执法中，对违法行为的行政处罚，除依法当场处罚外，应当自立案之日起60日内作出行政处罚决定；因案情复杂等特殊情况确需延长的，应当经委托机关负责人批准，但延长期限最长不得超过30日；依法检验、鉴定所需时间不计算在上述期间内。
第十八条在文化市场综合行政执法中发生重大事件时，综合执法机构应当即时向委托机关报告，并于24小时内以书面形式上报事件基本情况和处理情况。依法应当向本级人民政府和上级行政主管部门报告的，按有关规定执行。
第十九条委托机关应当加强对综合执法机构的队伍建设、制度落实、执法活动的监督检查。上级综合执法机构应当加强对下级综合执法机构的业务指导。
综合执法机构应当定期向委托机关报告行政执法情况和文化市场秩序情况。
第二十条县级以上人民政府应当按照《浙江省县级以上人民政府行政执法监督条例》的规定，加强对文化市场综合行政执法的监督，及时协调、处理有关重大问题。
省文化（文物）、广播电视、新闻出版（版权）行政管理部门应当根据各自职责，加强对文化市场综合行政执法工作的指导、协调和监督。
各级公安、工商、城市管理行政执法等有关部门应当依法履行职责，并配合综合执法机构做好文化市场综合行政执法的相关工作。
乡（镇）人民政府及有关机构应当协助做好农村文化市场综合行政执法工作。
第二十一条委托机关对其委托的事项不履行指导、监督职责，有渎职、失职行为，造成后果的，由有权机关按照管理权限,对负有直接责任的主管人员和其他直接责任人员依法给予行政处分。
第二十二条综合执法机构及其执法人员有下列行为之一的，由委托机关责令改正，对负有直接责任的主管人员和其他直接责任人员依法给予处分；构成犯罪的，依法追究刑事责任：
（一）滥用职权、执法违法的；
（二）执法不当，侵犯公民、法人及其他组织合法权益的；
（三）不严格履行法定职责，导致本地区文化市场秩序混乱或者其他严重后果的；
（四）违法参与文化市场经营活动的；
（五）利用职权或者工作之便索取、收受他人财物，或者支持、纵容、包庇文化市场违法经营活动的；
（六）对投诉、举报不受理、不处理，拖延推诿，或者泄露投诉、举报人情况和执法活动安排的；
（七）伪造、篡改、隐匿和销毁证据的；
（八）侵占、挪用罚没财物或者侵占、使用、损毁被暂扣、封存、先行登记保存的财物的；
（九）其他违反法律、法规、规章规定的行为。
第二十三条本办法自2009年1月1日起施行。