Accuracy and clarity are of critical importance when lawyers draft legislation and contracts. In no area is this more important than when legislation and contracts refer to the following:
- time periods within which – or dates by which – rights may be exercised or obligations must be performed; and
- limitations in relation to minimum, maximum or absolute numbers or amounts.
By way of example, if a call option agreement allows the holder of the option to exercise the right at any time before 30 June, it is of critical importance to determine whether 30 June is the last day on which the right may be exercised, or whether the last day is 29 June.
Two words that are interpreted in different ways, often with potentially serious consequences, are yishang and yixia. The critical question with these words is whether they include the specified number. Examples of how each of these words could be interpreted in different ways are as follows:
- shi sui yishang de haizi – does this mean “children who are over 10 years of age” (i.e. excluding children who are 10 years of age) or “children who are 10 years of age and over”?
- shi sui yixia de haizi – does this mean “children who are under 10 years of age” (i.e. excluding children who are 10 years of age) or “children who are 10 years of age and under”?
In the Chinese-English dictionary that I consulted, both possibilities were identified. On the other hand, the Chinese dictionary did not clarify the issue at all.
Research reveals that there has been significant debate in China about which interpretation is correct; namely, whether each word includes or excludes the specified number.
Professor Wang Mingren of the Chinese Department of Ningxia University has researched this question in great depth, having studied the use of these words in ancient texts, modern writing and in laws and regulations. He is reported to have spent 10 years collecting over 3,000 examples of the different ways in which these words have been used, 1,000 of which come from contemporary laws and regulations, teaching materials and news reports.
Professor Wang’s conclusion is that in ancient Chinese, each of these words was interpreted to include the specified number. In the twentieth century, however, the usage of these words became confused, particularly from 1980 onwards. According to Professor Wang, this has caused problems in both general literature and also in national and local laws, regulations and government rules.
In the context of civil law, some guidance is provided in article 155 of the PRC General Principles of Civil Law:
The words “yishang” and “yixia” when referred to in civil law include the specified number.
The following is an example of how “yishang” is used in article 104 of the PRC Company Law:
A resolution of the shareholders meeting to amend the company’s articles of association, to increase or decrease registered capital and a resolution in relation to the merger, separation, dissolution or change in the form of the company must be passed by two-thirds or more of the voting rights held by shareholders present at the meeting.
Article 99 of the PRC Criminal Law contains a similar provision:
The words “yishang”, “yixia” and “yinei” when used in this Law include the specified number.
The following is an example of how “yishang” and “yixia” are used in the PRC Criminal Law (article 42):
A term of criminal detention shall be not less than one month but not more than six months.
It is important to note that the above provisions only apply to civil law and the Criminal Law respectively. Uncertainty remains in relation to other documents and also in relation to contractual provisions that refer to dates or time periods that are not referred to specifically in the PRC Contract Law.
The confusion can be avoided by using other structures such as (bu)chaoguo, (bu)duoyu and (bu)diyu (meaning, respectively, “(not) exceeding”, “(not) more than” and “(not) less than”).
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A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia