1999
国际公法与国际私法卷
Please read the following questions carefully and answer them in Chinese .
PART ONE: PUBLIC INTERNATIONAL LAW
I.Make a statement of each of the following scholar’s nationality and one of his main academic achievements. (total 12 marks)
1. Pufendorf
2. Vattel
3. Bentham
4. Kelson
5.Duguit
6.Vendross
Ⅱ. Translate into Chinese and point out China’s status in each of these Treaties. (total 10 marks)
1. U.N. Convention on the Law of the Sea
2. Vienna Convention on the Law of Treaties
3. U.N. Convention on the Human Rights of 1966
4. Statute of the International Court of Justice
5. U.N. Framework Convention on Climate Change
Ⅲ. Answer the following questions in detail.(total 28 marks)
1. Describe the range of diplomatic immunities as for persons under the Vienna Convention on the Diplomatic Relations.(10 marks)
2. How to understand that the Security Council has the priority to the General Assemboy in the United Nations system?(8 marks)
3. The year of 1998 is the 50th Anniversary of the trial of the Far-East International Military Court (the Tokyo Trial). Please try to analyze the following issues:
(1)the international law basis of the Trial; (5 marks)
(2)the impartiality, equitableness and openness of the Trial.(5 marks)
PART TWO: PRIVATE INTERNTIONAL LAW
Ⅰ.Translate into Chinese and explain briefoy the following terms.(10 marks)
1. Lex loci solrtionis
2. migratory marriage
3. mobilia sequuntur personam
4. intertemporal conflict of laws
Ⅱ. Read the following statement, give a “true” if you think the statement is correct, or a “false” if the statement is wrong . Write your answer and simple reason on the answer sheet. DO NOT write on this sheet.(total 10 marks)
1. Based on principle of characteristic performance, the applicable law of a contract of international sale of goods shall be the lex domiclii of the buyer.
2. The doctrine of transmission is best exemplified by the well-known decision of the French Courde Cassation (Supreme Court of French )in 1882.
3. The International Institute for the Unification of Private Law (UNIDROIT)is a permanent governmental organization engaging in the drawing up international conventions on conflict laws between states.
4. The source of the conflict laws of China shall include the following: domestic legislation, domestic case law, international convention on conflict laws and international customs.
5. Under the rules of civil procedure law in countries of common law system (i. g. England),the action against a tort obligation is deemed as an action “in rem”.
Ⅲ. Discuss the following question INDETAIL.(total 15 marks)
1. Please give your comments on current Chinese Conflict laws on the tort obligations with foreign elements.(9 marks)
2. Please discuss the issue on the applicable of lex mercatoria in international commercial arbitration. Can lex mercatoria be applicable in commercial arbitration cases in Chinese practice.(6 marks)
Ⅳ．Case Analysis
In 1988，a Chinese citizen Mr．Feng(hereinafter refers to as F)moved to country H as an investment immigrant．In 1989，he registered a small company engaging business with china，one year later，F met Miss Anny(overseas Chinese with her domiclie in country H，19year old，hereinafter refers to as A)and soon fell in love with her．Not long after they cohabited and claimed their marriage，which is legal prusuant to the law of country H．In April，1992，their son(hereinafter refers to as B) was born in country H，In Oct,1992，F was killed in a car crash on his way to the company．Because F died intestate，A and B(1egally represented by A)then brought a lawsuit before the local court Of country H claiming their right of succession to the heritage of F which in，cluding the assets in the company and the house bought under the name of in 1990．The local court made the judgement supporting their claims according to the rele-
vant laws of country H which indicated that only spouses and children are first order successors several years before took proceedings in Chinese court to recover their
share of sucession．
You are required to answer the following question and give your reasons using rules of private international law to support your answers．
1．Does the Chinese people's court have jurisdiction over case despite the rival detemined by local court of country H?
2．Assuming that Chinese court has jurisdiction over this case，what issues should dealt with by the Chinese court? What are the applicable laws of these issues?
3．If the applicable of the law of country H leads to the results that F’s parents lose the right of succession．Can Chinese court use the system of“reservation of public order" to exclude the applicable of the law of country H?
4．As Chinese lawyer representing F’s parents，what kind of legal suggestion will you put forward to the Chinese court to safeguard the interest of your clients?
国际经济法卷
Please read the following questions carefully and answer them in Chinese.
Ⅰ.Translate into Chinese and explain briefly the following terms (total 15 marks)
1. revolving L/C
2. damages (as used in contract law)
3. countervailing duty
4. like product (as used in antidumping)
5. Madrid Agreement
6. tax credit
Ⅱ. Answer the following questions IN DETAIL (total 45 marks)
1. Explain the term”force majeure”, state its legal consequence to parties to a contract and the party’s duty who claims the “force majeure” in accordance with the Foreign Economic Contract Law of China. (10 marks)
2. Describe the fundamental principles of the General Agreement on Trade in Service . Point out at least two of the new agreements in this sector which have been concluded since the establishment of the WTO and describe China’s attitude towards these agreements. (15 marks)
3. By the end of 1996, WIPO adopted two treaties relating to copyright and related rights. Please write down the names of the Treaties, describe briefly the major content of them and point out the major difference(s) between these Treaties and China’s Copyright Law and related regulations. (10 marks)
4. Describe the mauor development in China’s foreign economic and trade arbitration system which, you think, has materially affected the arbitration system of China since the enactment of the Arbitration Law of China in 1994. (10 marks)
Ⅲ. Casse Anaoysis (total 40 marks)
1. A Chinese company and a foreign company entered into a oetter of intent to set up a joint venture in China. Among other thing they reached an agreement on the following legal aspects for the proposed project:
(1) The total investment of the joint venture would be USD 3，800，000 and the registrerd capital USD 2，000，000．The Chinese company would hold 49％ equity (USD 980，000) and the foreign company hold 51％ eqmty(USDl，020，000)．
(2)The Chinese company would provide the following things as its capital contributions: equipment， workshop，office building (It had been a collateral for a loan agreement for the Chinese compeny’s subordinated factory)，land use right and some cash．The foreign side would provide equipment and foreign curency as its
capital contributions．
(3)The two parties should put their capital contributions into the joint venture by two installments．Within three months from the date the business license is
granted the Chinese company should transfer its equipment，workshop，office building and land use right worth USD 700，000 tO the joint venture；the foreign company should put USD 120，000 into the foreign exchange account of the jlint venture．Within six months after the business license is issued，the Chinese company should pay into the joint venture account USD 280，000；the foreign side should provided equipment
worth USD 900，000．
If you were the legal counsel of the Chinese company，please analyze the following legal issues in accordance with the relevant Chinese laws and regulations：
(1)Whether the amount of the registered capital of the joint venture is in conformity with the revelant laws and regulations? How should the two parties adjust their subscribed capital to meet the minimum requirement for registered capital? (5 marks)
(2)Whether there are any ways of capital contibutions not in conformity with the revelant laws and regulations? Give your reasons。(5 marks)
(3)Whether there are any ways of capital contributions of the two parties not in conformity with the revelant laws and regulations? Why?(5 marks)
2．Yoho Company Limited (YCL)，a joint venture by a Japanese company and a Chinese company，is established in Shenzhen and is engaged in the sirvice of non-precision equipment maintenance．The total invest ment is 15，000，000 US dollars and each party invested 50％．The term of the joint venture contract is 15 years．YCL was formally established in 1987 and the operation begin in l988 and l989，and began to earn a profit from 1990．During its operation，its main source of income was reqaiting and maintaining the equipment sold in Chian by the Japanese investor of YCL，but is also had some income from technology transfer to other Chinese enterprise．Because the two parties are not in good cooperative relations，YCL was terminated in 1996 according to the agreement of the board of directors and the termination was approved by relevant government organizatons．
You are require to
(1)State，giving you reasons，the income tax rate to be applied to YCL for the whole term of the joint venture；(5 marks)
(2)State how YCL should treat the losses in 1988 and l989；(5 marks)
(3)Explain the income tax consequences of the termination of YCL．(5 marks)
3．United Way，an American company owns a patent in the United States, Etates，European Union countries and Japan．It signed a 5—year patent license agreement with Hope Company ，a Chinese company in 1995．In the technology transfer agreement，it is provided that Hope Company will only produce in its own factory and will not let anyone else use the technology．Nothing specific was provided in the agreement with regard to the selling of product。Hope Company was also permitted to use the licenser’s trademark UW，which was registerd not in the countries where United Way has patent right，but also in most of the Asia countries and in China ．In 1997，the production and market of the product was quite well and Hope Company received an order from a Janpanese company．
The products were to be delivered to the agent of the Janpanese company in Singapore and Janpan．Not long after Hope Company delivered the products，it was sued as joint defendant in both Japan，for patent and trademark infringement，and Singapore for trademark infringement.
Assuming you are representing Hope Company，please forward as many defenses as you can for your client in the law suits ,and also point out the possible result of each defense.(10 marks)
感谢Johnson提交
国际公法与国际私法卷
Please read the following questions carefully and answer them in Chinese .
PART ONE: PUBLIC INTERNATIONAL LAW
I.Make a statement of each of the following scholar’s nationality and one of his main academic achievements. (total 12 marks)
1. Pufendorf
2. Vattel
3. Bentham
4. Kelson
5.Duguit
6.Vendross
Ⅱ. Translate into Chinese and point out China’s status in each of these Treaties. (total 10 marks)
1. U.N. Convention on the Law of the Sea
2. Vienna Convention on the Law of Treaties
3. U.N. Convention on the Human Rights of 1966
4. Statute of the International Court of Justice
5. U.N. Framework Convention on Climate Change
Ⅲ. Answer the following questions in detail.(total 28 marks)
1. Describe the range of diplomatic immunities as for persons under the Vienna Convention on the Diplomatic Relations.(10 marks)
2. How to understand that the Security Council has the priority to the General Assemboy in the United Nations system?(8 marks)
3. The year of 1998 is the 50th Anniversary of the trial of the Far-East International Military Court (the Tokyo Trial). Please try to analyze the following issues:
(1)the international law basis of the Trial; (5 marks)
(2)the impartiality, equitableness and openness of the Trial.(5 marks)
PART TWO: PRIVATE INTERNTIONAL LAW
Ⅰ.Translate into Chinese and explain briefoy the following terms.(10 marks)
1. Lex loci solrtionis
2. migratory marriage
3. mobilia sequuntur personam
4. intertemporal conflict of laws
Ⅱ. Read the following statement, give a “true” if you think the statement is correct, or a “false” if the statement is wrong . Write your answer and simple reason on the answer sheet. DO NOT write on this sheet.(total 10 marks)
1. Based on principle of characteristic performance, the applicable law of a contract of international sale of goods shall be the lex domiclii of the buyer.
2. The doctrine of transmission is best exemplified by the well-known decision of the French Courde Cassation (Supreme Court of French )in 1882.
3. The International Institute for the Unification of Private Law (UNIDROIT)is a permanent governmental organization engaging in the drawing up international conventions on conflict laws between states.
4. The source of the conflict laws of China shall include the following: domestic legislation, domestic case law, international convention on conflict laws and international customs.
5. Under the rules of civil procedure law in countries of common law system (i. g. England),the action against a tort obligation is deemed as an action “in rem”.
Ⅲ. Discuss the following question INDETAIL.(total 15 marks)
1. Please give your comments on current Chinese Conflict laws on the tort obligations with foreign elements.(9 marks)
2. Please discuss the issue on the applicable of lex mercatoria in international commercial arbitration. Can lex mercatoria be applicable in commercial arbitration cases in Chinese practice.(6 marks)
Ⅳ．Case Analysis
In 1988，a Chinese citizen Mr．Feng(hereinafter refers to as F)moved to country H as an investment immigrant．In 1989，he registered a small company engaging business with china，one year later，F met Miss Anny(overseas Chinese with her domiclie in country H，19year old，hereinafter refers to as A)and soon fell in love with her．Not long after they cohabited and claimed their marriage，which is legal prusuant to the law of country H．In April，1992，their son(hereinafter refers to as B) was born in country H，In Oct,1992，F was killed in a car crash on his way to the company．Because F died intestate，A and B(1egally represented by A)then brought a lawsuit before the local court Of country H claiming their right of succession to the heritage of F which in，cluding the assets in the company and the house bought under the name of in 1990．The local court made the judgement supporting their claims according to the rele-
vant laws of country H which indicated that only spouses and children are first order successors several years before took proceedings in Chinese court to recover their
share of sucession．
You are required to answer the following question and give your reasons using rules of private international law to support your answers．
1．Does the Chinese people's court have jurisdiction over case despite the rival detemined by local court of country H?
2．Assuming that Chinese court has jurisdiction over this case，what issues should dealt with by the Chinese court? What are the applicable laws of these issues?
3．If the applicable of the law of country H leads to the results that F’s parents lose the right of succession．Can Chinese court use the system of“reservation of public order" to exclude the applicable of the law of country H?
4．As Chinese lawyer representing F’s parents，what kind of legal suggestion will you put forward to the Chinese court to safeguard the interest of your clients?
国际经济法卷
Please read the following questions carefully and answer them in Chinese.
Ⅰ.Translate into Chinese and explain briefly the following terms (total 15 marks)
1. revolving L/C
2. damages (as used in contract law)
3. countervailing duty
4. like product (as used in antidumping)
5. Madrid Agreement
6. tax credit
Ⅱ. Answer the following questions IN DETAIL (total 45 marks)
1. Explain the term”force majeure”, state its legal consequence to parties to a contract and the party’s duty who claims the “force majeure” in accordance with the Foreign Economic Contract Law of China. (10 marks)
2. Describe the fundamental principles of the General Agreement on Trade in Service . Point out at least two of the new agreements in this sector which have been concluded since the establishment of the WTO and describe China’s attitude towards these agreements. (15 marks)
3. By the end of 1996, WIPO adopted two treaties relating to copyright and related rights. Please write down the names of the Treaties, describe briefly the major content of them and point out the major difference(s) between these Treaties and China’s Copyright Law and related regulations. (10 marks)
4. Describe the mauor development in China’s foreign economic and trade arbitration system which, you think, has materially affected the arbitration system of China since the enactment of the Arbitration Law of China in 1994. (10 marks)
Ⅲ. Casse Anaoysis (total 40 marks)
1. A Chinese company and a foreign company entered into a oetter of intent to set up a joint venture in China. Among other thing they reached an agreement on the following legal aspects for the proposed project:
(1) The total investment of the joint venture would be USD 3，800，000 and the registrerd capital USD 2，000，000．The Chinese company would hold 49％ equity (USD 980，000) and the foreign company hold 51％ eqmty(USDl，020，000)．
(2)The Chinese company would provide the following things as its capital contributions: equipment， workshop，office building (It had been a collateral for a loan agreement for the Chinese compeny’s subordinated factory)，land use right and some cash．The foreign side would provide equipment and foreign curency as its
capital contributions．
(3)The two parties should put their capital contributions into the joint venture by two installments．Within three months from the date the business license is
granted the Chinese company should transfer its equipment，workshop，office building and land use right worth USD 700，000 tO the joint venture；the foreign company should put USD 120，000 into the foreign exchange account of the jlint venture．Within six months after the business license is issued，the Chinese company should pay into the joint venture account USD 280，000；the foreign side should provided equipment
worth USD 900，000．
If you were the legal counsel of the Chinese company，please analyze the following legal issues in accordance with the relevant Chinese laws and regulations：
(1)Whether the amount of the registered capital of the joint venture is in conformity with the revelant laws and regulations? How should the two parties adjust their subscribed capital to meet the minimum requirement for registered capital? (5 marks)
(2)Whether there are any ways of capital contibutions not in conformity with the revelant laws and regulations? Give your reasons。(5 marks)
(3)Whether there are any ways of capital contributions of the two parties not in conformity with the revelant laws and regulations? Why?(5 marks)
2．Yoho Company Limited (YCL)，a joint venture by a Japanese company and a Chinese company，is established in Shenzhen and is engaged in the sirvice of non-precision equipment maintenance．The total invest ment is 15，000，000 US dollars and each party invested 50％．The term of the joint venture contract is 15 years．YCL was formally established in 1987 and the operation begin in l988 and l989，and began to earn a profit from 1990．During its operation，its main source of income was reqaiting and maintaining the equipment sold in Chian by the Japanese investor of YCL，but is also had some income from technology transfer to other Chinese enterprise．Because the two parties are not in good cooperative relations，YCL was terminated in 1996 according to the agreement of the board of directors and the termination was approved by relevant government organizatons．
You are require to
(1)State，giving you reasons，the income tax rate to be applied to YCL for the whole term of the joint venture；(5 marks)
(2)State how YCL should treat the losses in 1988 and l989；(5 marks)
(3)Explain the income tax consequences of the termination of YCL．(5 marks)
3．United Way，an American company owns a patent in the United States, Etates，European Union countries and Japan．It signed a 5—year patent license agreement with Hope Company ，a Chinese company in 1995．In the technology transfer agreement，it is provided that Hope Company will only produce in its own factory and will not let anyone else use the technology．Nothing specific was provided in the agreement with regard to the selling of product。Hope Company was also permitted to use the licenser’s trademark UW，which was registerd not in the countries where United Way has patent right，but also in most of the Asia countries and in China ．In 1997，the production and market of the product was quite well and Hope Company received an order from a Janpanese company．
The products were to be delivered to the agent of the Janpanese company in Singapore and Janpan．Not long after Hope Company delivered the products，it was sued as joint defendant in both Japan，for patent and trademark infringement，and Singapore for trademark infringement.
Assuming you are representing Hope Company，please forward as many defenses as you can for your client in the law suits ,and also point out the possible result of each defense.(10 marks)
感谢Johnson提交
