Legal regulations on and main considerations for drafting a substitute civil agreement

Drafting a substitute civil agreement is an important legal solution for amending, revising, or replacing civil commitments previously established between parties. A well-drafted substitute civil agreement enables the parties to update contractual terms to reflect current circumstances, minimize the risk of disputes, and safeguard their lawful rights and interests in accordance with prevailing civil law regulations.

I. Common mistakes in practice when drafting a substitute agreement

In practice, when drafting a substitute civil agreement, parties often encounter several common mistakes, such as failing to clearly define the scope of replacement of the original contract, resulting in misunderstandings regarding the validity of the remaining provisions. In addition, many agreements lack important contents such as rights, obligations, timelines, or mechanisms for handling breaches, thereby reducing the legal certainty of the document.

Furthermore, the use of ambiguous language or inconsistent legal terminology may lead to different interpretations during implementation. In some cases, parties fail to review the consistency of the substitute agreement with related contracts and supporting documents, or they make procedural errors in execution and signing, which may create potential disputes during performance.

II. Concept of drafting a substitute civil agreement

1. What is drafting a substitute civil agreement?

Drafting a substitute civil agreement means preparing a new document by parties in a civil relationship to replace all or part of the contents of a previously signed agreement or contract in order to adjust rights, obligations, and contractual provisions in compliance with their current needs and intentions.

2. How does a substitute civil agreement differ from an ordinary civil contract?

A substitute civil agreement differs from an ordinary civil contract in that it is created to amend, modify, or replace an existing contract, whereas an ordinary civil contract establishes a new civil legal relationship between the parties.

Moreover, a substitute agreement is generally linked to a prior contract and aims to clarify whether that contract will continue, be amended, or cease to have effect. By contrast, an ordinary civil contract is legally independent and does not rely on any pre-existing contract for its validity.

3. In what situations is a substitute civil agreement commonly used?

A substitute civil agreement is commonly used when the parties wish to revise an existing contract due to changes in actual circumstances or transactional needs. Typical situations include amendments to contractual value, payment methods, time for implementation, or the scope of rights and obligations between the parties.

Additionally, such a mechanism may be employed when the original contract is no longer suitable for continued execution, but the parties still wish to maintain their legal relationship through a new agreement that wholly or substantially replaces the contents of the prior contract.

III. Legal regulations governing the drafting of a substitute civil agreement

1. Conditions for the legal validity of a substitute civil agreement

A substitute civil agreement is legally effective only if it satisfies all conditions for the validity of a civil transaction as prescribed in Article 117 of the 2015 Civil Code, specifically:

• The parties possess legal capacity and civil act capacity appropriate to the transaction being established.
• The parties enter into the agreement voluntarily, without mistake, deception, threat, or coercion.
• The purpose and contents of the agreement do not violate statutory prohibitions and are not contrary to social ethics.
• The form of the transaction complies with legal requirements (where the law requires a written form, notarization, or certification, such requirements must be observed).

In addition, for agreements replacing an existing contract, the parties should clearly express their intention to replace all or part of the original contract, consistent with the principles of freedom and voluntariness in commitments and agreements under Article 3 of the 2015 Civil Code.

2. What are the legal requirements regarding the form of a substitute civil agreement?

Pursuant to Article 119 of the 2015 Civil Code, civil transactions may generally be established verbally, in writing, or through specific conduct, except where the law requires a written form, notarization, or certification.

For a substitute civil agreement, the required form depends on the type of contract being replaced. If the original contract was legally required to be in writing, notarized, or certified, the substitute agreement must generally comply with the same formal requirements to ensure its legal validity. In addition, the document should clearly state whether it replaces the original contract in whole or in part to avoid disputes regarding its scope and effectiveness.

3. Essential contents of a substitute civil agreement

Current legislation does not prescribe a mandatory template specifically for substitute civil agreements. However, as a civil transaction, such an agreement must comply with the principles governing contracts and civil transactions under Articles 398 and 117 of the 2015 Civil Code, which permit freedom of agreement provided that it does not contravene the law.

A substitute civil agreement should generally include the following main contents:

• Information of the contracting parties;
• Legal basis for entering into the agreement (the prior contract or document being replaced);
• Scope of replacement (whether the original contract is replaced in whole or in part);
• Specific amendments or replacement provisions (rights, obligations, value, duration, etc.);
• Effective date of the substitute agreement and termination date of the original contract;
• General commitments and implementation principles;
• Dispute resolution mechanism (if any);
• Signatures or confirmations of the parties (and notarization/certification where legally required).

4. Regulations on the rights and obligations of the parties under a substitute agreement

The rights and obligations of the parties under a substitute civil agreement are established in accordance with the principles of freedom and voluntariness in commitments and agreements set out in Articles 3 and 385 of the Civil Code 2015. Accordingly, parties are free to agree on contractual terms, provided such agreements do not violate statutory prohibitions or social ethics.

- Rights of the Parties:

• To negotiate, amend, supplement, or replace the contents of the original contract;
• To require the other party to perform the newly agreed obligations properly;
• To refuse performance of obligations that are no longer applicable under the substitute agreement.

- Obligations of the Parties:

• To perform fully and accurately the terms agreed upon in the substitute agreement;
• To cooperate with each other during implementation;
• To take liability for breaches of agreed obligations, unless otherwise agreed by the parties.

IV. Questions regarding the drafting of a substitute civil agreement

1. Is notarization or certification required for a substitute civil agreement?

Pursuant to Article 119 of the Civil Code 2015, a civil transaction may be established in writing, verbally, or through specific conduct, except where the law requires notarization or certification.

Accordingly, a substitute civil agreement is not required to be notarized or certified unless such formality is mandated by law for the original contract. However, if the original contract falls within a category requiring notarization or certification, the substitute agreement must comply with the same formal requirements to ensure its legal validity.

2. Does the original contract remain effective after a substitute agreement is executed?

Under Article 421 of the 2015 Civil Code regarding the amendment and termination of contracts, when the parties enter into a substitute civil agreement, the original contract ceases to be effective to the extent that its provisions are replaced, from the date agreed upon by the parties or the effective date specified in the substitute agreement.

Where the substitute agreement is intended to replace the original contract in its entirety, the original contract shall terminate completely, unless the parties expressly agree that certain provisions of the original contract will remain in effect.

3. Is the consent of all relevant parties required to execute a substitute agreement?

Pursuant to the principles governing the formation and amendment of contracts under Articles 385 and 421 of the Civil Code 2015, a substitute civil agreement must be entered into with the consent of all parties to the original contract.

In cases involving multiple parties, all parties having relevant rights and obligations must participate in the execution of, or provide written consent to, the substitute agreement, unless otherwise agreed or provided by law. The absence of consent from any party may render the substitute agreement ineffective with respect to that party.

4. How can parties ensure that a substitute agreement is not declared invalid?

To ensure that a substitute civil agreement is not invalidated, it must satisfy all conditions for the validity of a civil transaction under Article 117 of the Civil Code 2015, including:

• The parties possess the requisite legal capacity and civil act capacity;
• The agreement is entered into voluntarily by all parties;
• The purpose and contents of the agreement do not violate legal prohibitions and are not contrary to social ethics;
• The agreement complies with any legally required formality.

In addition, the parties should clearly define the scope of replacement of the original contract, draft provisions in a transparent and unambiguous manner, ensure consistency with related documents, and verify that the signatories have proper authority. These measures help reduce the risk of disputes and invalidation.

5. Can a substitute agreement be applied to all types of civil contracts?

Under Articles 385 and 421 of the Civil Code 2015, parties have the right to amend, supplement, or replace an executed contract. However, the use of a substitute civil agreement may not be appropriate for every type of civil contract.

A substitute agreement may only be used if the proposed changes are not prohibited by law and do not result in provisions that violate mandatory legal requirements. Furthermore, the substitute agreement must comply with any mandatory formalities applicable to the specific transaction.

For contracts subject to strict legal requirements concerning form, procedures, registration, notarization, or certification, any substitute agreement must comply with the corresponding legal requirements to ensure its enforceability and legal effect.

V. Why should you seek legal advice from NPLaw regarding the drafting of a substitute civil agreement?

A substitute civil agreement directly affects the amendment or termination of an existing contract. Consequently, inadequate drafting may result in invalidity, uncertainty, or disputes during performance. Determining the scope of replacement, ensuring compliance with validity requirements, and maintaining consistency with the original contract require comprehensive legal expertise.

With extensive experience in civil and contract law, NPLaw assists clients in reviewing all relevant documents, advising on the appropriate structure of substitute agreements, and ensuring that contractual provisions are clear, legally compliant, and designed to minimize legal risks.

In addition, NPLaw provides support in negotiations between parties, preparation of standardized legal documents, review of the validity of both form and substance, and representation in dispute resolution proceedings where necessary, thereby maximizing the protection of clients’ lawful rights and interests.

The information provided above is for reference purposes only. Should you require detailed legal advice regarding a specific matter, please contact NPLaw for prompt assistance.