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华政研究生考试历年试题--国际法专业课部分
专业课部分（1998-2003）
1998年 PART ONE International Law
Please read the following carefully and answer them in Chinese.
Translate the following terms into Chinese and explain them in brief. (15%)
1 Opinio juds sive necessitatis
2 ex aquo et bono
3 thalweg median line principle
4 deposit the instrument of ratification
5 international conciliation
Please point out the differences between the: (15%)
1 the protective jurisdiction and the universal jurisdiction
2 authentication and signature
3 International Convention on Economic, Social and Cultural Rights and International Convention on Civil and Political Rights
Answer the following questions briefly. (10%)
How should the states with opposite or adjacent coasts delimitate their exclusive economic zones and continental shelf according to the Articles 74 and 83 of the UN Convention on the Law of the Sea?
Case analysis. (10%)
The International Criminal Tribunal for the former Yugoslavia began to try the Tadie case in June 1995. Tadie was accused for his crime of genocide. The Tribunal delivered its interlocutory judgment on August 10, 1995 denying Tadie's defense that the Tribunal had no jurisdiction over the case. And the trial came into the substantive period afterwards.
Please analyze:
The International Criminal Tribunal was set up by the UN Security Council. Did the Charter of UN give such power to the Security Council?
Does the crime of genocide fall into the category of war crime? The International Criminal Tribunal have jurisdiction over the crimes taking place in the internal war of a country?
PART TWO Private International Law
Please read the following carefully and answer them in Chinese to the point. Put forward various basic principles of private international law to support your answer, whether they are in the positive or negative.
Translate into Chinese' and explain briefly the following terms. (9%)
1: the proper law of a contract
2. black-letter conflict norms
3. lex fori
Read the following statements, give a”√" if you think the statement is correct, or a ”X” if this statement is wrong. Write your answer on the answer sheet, DO NOT write on this sheet. (10%)
1 Only domestic substantive law can be applied as applicable law over civil legal relationship with foreign elements.
2 Based on the principle of personal supremacy, the host country can excise its civil jurisdiction on the cases in which one party is a foreigner.
3 In China's judicial practice, there is no need for a people's court to use "reservation of public order” while determining the applicable law of a foreign-related tort obligation.
4 According to Chinese la'~ and judicial practice, when a foreign law which is the applicable law of a certain case can not be proved by the PeopIe's Court through all statutory ways, the Court will determine the case based on fair and reasonable rules.
5 One of the effective approaches to eliminate the possibility of "forum shopping" is to establish the international uniform substantive laws.
Discuss the following questions IN DETAILS (20%)
1. What is the function of Characterization? (10%)
2. What do you think is the trend of the development of !ex personalis in the world? (please discuss this question in relation to with China's specific situations.) (11%)
Case Analysis. (11%)
In 1981 Mr. Noden (hereinafter refers to N), a citizen of country A, married a Chinese woman Mrs. Wang (hereinafter refers to W) and domiciled in China after marriage. N died intestate(未留遗嘱) in 1989 in China at the age of 68. W thought that as the wife of the deceased, she was the only legal successor who has the right to inherit the property of N.
N's property included property X (which is deemed as immovable according to the laws of China and country A, but as moveable by law of country B) and property Y(which is regarded as moveable by the laws df the aforementioned three countries).
While Mrs. Lemon (hereinafter refers to L), a citizen of country B, who was legally adopted by N in country B in 1978 when L was 25 year old, (The adoption was illegal pursuant to the laws of country A.) accused W for infringing her right of succession and brought the case before a Chinese people's court against W, alleging that W and L have the equal right of succession to the properly of N.
The re!event laws of Country A and country B are as follows:
The rules of country A for the choice of laws is that intestate succession is governed by the lex situs in the case of immovables, but by the lex domicilii in the case of moveables. Adoption is governed by the lex patrial of the adoptor.
The rules of country B for the choice of laws is that intestate succession is governed by the lex domicilii in the case of both movables and immovables. Adoption is governed by the lex partial of the adopted person.
Please answer the following question and give your reasons using rules of private international law to support your answer.
1 Does the Chinese people's court have jurisdiction over this case?
2 Assuming that the Chinese court has jurisdiction over this case, what issues
3 should be dealt with by the Chinese court?
4 What are the applicable laws of the aforementioned issues?
5 What kind of judgment will be made by the Chinese people's court?
Part Three: International Economic Law
Please read the following carefully and answer in Chinese to the point,
Translate the following terms into Chinese and explain them briefly. (21%)
1. sustainable development
2. ITA
3. specificity
4. general average
5. financial derivative instrument
6. double taxation
7. DSB
Read the following statements, give a ”√" if you think the statement is correct, or a X if the statement is wrong. Write your answer on answer sheet, DO NOT write on this sheet. (24%)
1. A tax credit in international taxation means that the whole amount of tax paid by a person in a foreign country may be deducted from the payable income tax when calculating the tax liabilities in a home country.
2. A financial service is any service of a financial nature offered by a financial service supplier of a country. Financial services include all insurance and insurance-related services, and all banking and other financial services (excluding insurance). 3. Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade is usually called the Countervailing Agreement,
4. In a contract of international sale of goods, if the price takes the form of CIF, the seller takes the risk until the goods reaches the named place of destination.
5. According to the Basel Agreement the ratio of risk assets against bank capital of a bank engaged in transnational business after 1993 should be no less than 8%.
6. Compared with the Hague Rules, the Visby Ru!es raised the limitation of liability of the carrier.
7. According to Chinese laws, foreign investors are net allowed to invest in joint ventures engaging in import and export commodity inspection.
8. The European Patent Treaty has taken place of the patent laws of the member states.
9. Every four years the WTO will undertake a Trade policy review over all the members.
10. The law of a country provides that an enterprise should first purchase or use products of domestic origin when the condition of purchase is the same for domestic and foreign products. This provision is not inconsistent with the obligation of national treatment provided in TRIMs.
11. According to United Nations Convention on Contracts for international Sales of Goods, a late acceptance sent through fax is effective as an acceptance if the offeror does not raise any objection promptly.
12. Since China is a member of the New Convention, any arbitration award made in a member country is enforceable in China.
Make the choice(s) which you think fit(s) the statement. (5%)
1 In an international project,loan contract, the borrower may make ___ to the lender.
(a) negative pledge
(b) pari passu
(c) preservation of assets
(d) financial covenant
2 A Japanese citizen applied for invention patent in Japan on December 5, 1996, which was published on Apd120, 1997. He applied for the same subject in China on August 20, 1997. His application:
(a)does not lose novelty because both China and Japan are members of WlPO.
(b)does not lose novelty because he has not been granted patent in Japan.
(c) does not lose novelty because he enjoys priority.
(d) has lost novelty because his appfication was already published in Japan.
3 On February 15, i997, the WTO reached a landmark agreement on
(a) financial service
(b) basic telecommunications.
(c) co-operation between WTO and IMF.
(d) government procurement.
4 The APEC ministerial Conference which ended on November 22, 1997 decided thatmembers will voluntarily liberalize ahead of schedule the following areas:
(a) environmental product.
(b) financial service
(c) fish and fish products,
(d) automobiles
5 According to "the Provisional Rules for Setting Up Investment Corporations by Foreign Investors"; the following requirement(s) shall be met to set up a investing corporation:
(a) the foreign investor shall be a transnational corporation
(b) the registered capital of the investment corporation shall be no less than 40,000,000 US dollars
(c) the foreign investor has already set up 10 joint ventures in manufacturing or infrastructure in China and the total paid in capital exceeds 30,000,000 US doIlars
(d) there shall be at least one Chinese party
Answer the following questions. (30%)
1 Article 19 of the United Nations Convention on Contracts for International Sales of Good states: "(1) In a reply to an offer which purports to be an acceptance but contains addition limitations or other modifications is a rejection of the offer and constitutes a counter-offer. However, a reply to an offer which purports to be an acceptance but contains additional different terms which do not materially alter the terms of the offer constitutes an acceptant unless the offeror without undue delay, objects orally to the discrepancy or dispatches a notice to that effect. If he does not so objects, the terms of the contract are the terms of the offer wit the modifications contained in the acceptance. (3) Additional or different terms relating, among other things, to the price, payment, quality and quantity of the goods, place and time of deliver extent of one party's liability to the other or the settlement of disputes are considered to alter the terms of the offer materially.'
Please explain the basic meaning of this Article (10 marks)
2 Of China and other relevant international treaties and international practices, the contract was formed. GCL should be responsible for its failure to perform its duly of payment". It also argued that the United Nations Convention on Contracts for International Sales of Goods should beapplied. However, GCL insisted that only the Foreign Economic Contract Law of China should be applicable since DF made such a choice in its complaint. For the purpose of settling the dispute, it is necessary to decide which law should be applicable. China and German are the members of the above-mentioned international convention.
Please determine-which law should be applied and give your reasons. (10 marks)
3 A contractual joint venture, with Hong Tian (a Chinese company) and Mark Goodman (a British citizen) as its investors, was established with the approval of relevant authority in 1993. The joint venture engages in restaurant and recreation business. The contract provided that the Hong Tian should put into the joint venture as its investment the right to use some real estate (two floors of a five-floor building which was owned by Hong Tian's parent company, Haijia Company) and the Mark will invest in cash as registered capital of the joint venture. Mark would be fully responsible for the management and it would pay to the Chinese party a certain amount of money as "profit" from 1994, with 5% increase each year. The joint venture was funning quite successfully, and the "profit" had been paid according to the contract. In May 1996, Haijia Company asked Mark to pay rent and was refused, so Haijia cut off electricity supply and sued in the county court. Despite Mark's argument that the case should be handled through arbitration because there is an arbitration clause in the joint venture contract, the court decided that it had jurisdiction over the case since there is no arbitration clause between Mark and Haijia. The court decided that Mark should pay rent to Haijia.
Do you think the judgment of the court is correct? Why? (10 marks)
1999-- PART ONE: PUBLIC INTERNA LAW
Make a statement of each of the following scholar's nationality and one of his main academic achievements (total 12 marks)
1、Rufendof 2、 Vattel 3、 Bentham 4、Kelson 5、Duguit 6、Vendross
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 1996
4、Statute of the International Court of Justice
5、U.N. Framework Convention on Climate Change
Answer the following question 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 Assembly in the United Nations system? (8marks)
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 INTERNATIONAL LAW
Translate into Chinese and explain briefly the following terms (10 marks)
lex loci solutionis
migratory marriage
mobilia sequuntur personam
intertemporal conflict of laws
Read the followingstatements, give a”√" if you think the statement is correct, or a "X" if this statement is wrong. Write your answer and simple reasons 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 Frence) in 1882.
3 The International Institute for the Unification of Private Law (UNIDRO1T) 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".
Discuss the following question IN DETAIL (total 15 marks)
Please give your comments on current Chinese conflict laws on the tort obligations with foreign elements. (9 marks)
Please discuss the issue on the application of lex mercatoria in international commercial arbitration. Can lex mercatoria be applied in commercial arbitration cases in Chinese practice? (6marks)
Case analysis (15 marks)
In 1988, a Chinese citizen Mr. Feng (hereinafter refers to as F) moved to country H as an investment immigrant. In 1989, lie registered a small company engaging business with china. One year later, F met Miss Army (overseas Chinese with her domicile in country H, 19 year 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 pursuant 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 (legally 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 including the asset S in the company and the house bought under the name of F in 1990. The local court made the judgment supporting their claims according to the relevant 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 succession.
You are required to answer the following question and give your reasons using rules of private international law to your answers.
Assuming that the Chinese court has jurisdiction over this case, what issues should dealt with by the Chinese court?
What are the applicable laws of these issues?
If the application of the law of country H leads to the result that F’s parents lose the right of succession, Can Chinese court use the system of "reservation of public order" to exclude the application of the law of country H?
As Chinese lawyer representing Fs parents, what kind of legal suggestion will you put forward to the Chinese court to safeguard the interest of your clients?
Part Three: International Economic Law
Please read the follow questions carefully and answer then in Chinese.
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
Answer the following question IN DETALL (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 file 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. (15marks)
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 major 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)
Case Analysis (total 40 marks)
1 A Chinese company and a foreign company entered into a letter 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: (t) The total investment of the joint venture would be USD 3.800,000 and the registered capital USD 2,000,000. The Chinese company would 49% equity (USD 980,000) and the foreign company 51% equity (USD 1,020,000).
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 company's subordinated factory.), land use right and some cash. The foreign side would provide equipment and foreign currency as its capital contributions. The two parties should put their capital contributions into the joint venture by two instalments. Within three months from the date the business license is granted the Chinese company should transfer its equipment, workshop, office building and land use
worth USD 700,000 to the joint venture; the foreign company should put USD 120,000 into the foreign exchange account of the joint 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 provide 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 relevant laws and regulations?
(2)、How should the two parties adjust their subscribed capital to meet the minimum requirement for registered capital? (5 marks)
(3)、Whether there are any ways of capital contributions not in conformity with the relevant laws and regulations? Give your reasons. (5marks)
（4）、Whether there are any ways of capital contributions of the two parties with the relevant law and regulations? Why? (5marks)
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 service of non-precision equipment maintenance. The total investment is 15,000,000 US dollars and each party invested 50%. The term of joint venture contract is 15 years .YCL was formally established in 1987 and operation began in 1988, and began to earn a profit from 1990. During its operation, its main source of income was repaying and maintaining the equipment sold in China by the Japanese investor of YCL, but it also had some income from technology transfer to other Chinese enterprises. 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 organizations.
You are required to :
(1) state, giving your 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 1989; (5 marks) and (3)explain the income tax consequences of the termination of YCL.(5marks)
3 United Way, an American company owns a product 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 0nly produce the product 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 registered not in the countries where United Way has patent right, but also in most of the Asian countries and in China. In 1997, the production and market of the product was quite well and Hope Company received an order from a Japanese company, The products were to be delivered to the agent of the Japanese company in Singapore and Japan. 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)
2000-PART ONE: PUBLIC NTERNATIONAL LAW
Translate and compare briefly the following terms of the law of the sea: (15%)
1、single exploitation system & parallel exploitation
2、archipelagic sea lane passage & transit passage
3、 normal baseline & straight baseline
4 、right of visit & right of hot pursuit
5 、contiguous zone & exclusive economic zone
Answer the following questions: (25%)
1、 What are the reservations made by our country to the Convention on Diplomatic Relations of Vienna? Please give your comments. (7%)
2、 How do you understand "the principle of absolute immunity"? What do you think is the trend of "state judicial immunity" in the future? (6%)
3、 What are the similarities and differences between the protective jurisdiction and universal jurisdiction7 (6%)
4、 Is the "principle of human rights" one of the basic principles of international law? Give your reasons to your answer. (6%)
Describe and comment briefly on the reform of the Unite from the perspective of international law. (10%)
PART TWO PRIVATE INTERNATIONAIL LAW
Translate into Chinese and explain briefly the following legal terms (12%)
1、Fraus Omma Comunpit
2、Formula of attribution
3、Mandatory rules
4、Lex loci re sitae
Read the following statements, give a "/' if you think the statement is correct, or a "x" ifyou think the statement is wrong. (10%):
1 Chinese state institutions, as special subjects with state immunity, are not responsible for the losses resulting from their unlawful activities. ( )
2 According to the Contract Law of the PRC, the Chinese law shall be applied to the contract of enterprise operated exclusively with foreign capital. ( )
3 Based on the principle of characteristic performance , the proper law of any contract of international sale of goods shall be the lex domicilii of the buyer. ( )
4 According to Chinese law and judicial practice, remission revoi can be used in civil proceedings. ( )
5 According to the CIETAC Arbitration Rules, once the parties agree to submit their dispute to the Arbitration Commission, only the CIETAC Arbitration Rules can be applied to their dispute. ( )
Answer the question in detail (13%)
Explain the relationship between jurisdiction and lex causae
Case analysis (15%):
X, a Chinese company, signed a contract with Y, an American company with its head office in California, to set up an equity joint venture company in Shanghai The contract contained a dispute resolution clause which provided that "Any dispute arising from or in connection with this contract shall be submitted to China Intentional Economic and Trade Arbitration Commission for arbitration which shall be conducted in accordance with the Commission's Arbitration Rules, or shall be settled by litigation."
In the process of performing the contract, Y could not contribute in full the amount of its investment within the period stipulated in the contract. The parties could not resolve their dispute by friendly negotiation. X submitted their dispute to CIETAC Shanghai Sub-Commission for arbitration. But Y charged X with negligence of letting out the secrets of its technologies mad brought the case before an .American court in California.
Answer the following questions based on the Civil Procedure Law and the Arbitration Law of the PRC, and give the reasons to supportyour answers:
1 Does CIETAC Shanghai Sub-Commission have jurisdiction over this case? (5%)
2 Does the Amc'dean court in California have jurisdiction over this case? (5%)
3 In your opinion, is it possible for the Chinese People's Court in Shanghai to exercise its jurisdiction over this case? (5%)
Part Three: International Economic Law
Read the following questions carefully and answer them in CHINESE.
Translate and explain briefly the following terms: (15%)
1 Principle of Transparency
2 Safeguard Measures
3 EDI
4 Expropriation
5 Method of Tax Deduction
Read the following carefully and indicate in the bracket if the statement is correct or wrong by / or X: (15%)
1 According to Berne Convention, a citizen of a member state can enjoy copyright in all member states as soon as he finishes the creation of a work. ( )
2 MAXAM is a famous trademark in China. It can be protected in other Paris Convention member states regardless of its registration status ( )
3 The principle of national treatment under GATT 1994 means that a foreigner who is a citizen of a Member shall enjoy a treatment in another Member same as enjoyed by the nationals of that Member. ( )
4 The Subsidy and Countervailing Measures Agreement of WTO permits a Member to undertake countervailing measures once the subsidy by another Member is established. ( )
5 A lead manager in a syndicated loan refers to one or several banks which organizes a group of banks to provide the loan. ( )
6 Mr. X, who is a citizen of Country B but works in Country A, may not be taxed by Country B upon his income in Country A. ( )
7 According to the laws of the foreign investment enterprises of China, all foreign investment enterprises in China. shall adopt the form of limited liability company ifthey are set up as an independent legal entity. ( )
8 A letter of credit is a promise of absolute payment given by the issuing hank to a beneficiary ( )
9 A bill of exchange is an unconditional order in writing, addressed by a buyer to a seller, signed by the person giving it, to pay at a fixed or determinable future time a sum certain in money ( ) 10 The Basle Committee on Banking Supervision promulgated a series of legally binding rules on capitals of bank and banking operations. ( )
Answer the following questions: (40%, each question 10%)
1 Describe the procedure of dispute settlement under WTO's Understanding of Rules and Procedures on Settlement of Disputes.
2 After the coming into effect of the Contract Law of the PRC on October 1, 1999, will the requirement for the formality of foreign trade contract change? What is the relation between the change, if any, and China's reservation to the UN Convention on Contracts of International Trade?
3 A Chinese corporation and an American corporation entered into a contract for sale of garment from the former to the latter. Describe the possible international treaties or domestic laws and regulations that may affect or regulate their transaction.
4 The Arbitration Law of China as effective since September 1, 1995 set forth the rules of cancellation of arbitral awards. Compare the major differences between the domestic arbitral awards and foreign-related arbitral awards in terms of jurisdiction, procedures and conditions for cancellation respectively, especially point out the latest development in the Chinese people's court in dealing with cases relating to the cancellation of awards.
Case analysis: (30%)
1 Mr. Zhang is a senior researcher working with AB Laboratory in America. Recently he finished a bioengineering research project in the Lab and wants to apply for patent. Mr. Zhang went to the United States 12 years ago and is now a US citizen. Since this is the first major project he has finished with success, he wants to apply for patent in China and the US. Please advice him what legal issues he might come across and how he should prepare for the application. (10%)
2 Ms. An is a citizen of Country A and works in Country B. Can Country A levy tax on her income from Country B? On what basis? Can Country B levy tax on her income from Country B? On what basis? (5%)
3 According to a regulation adopted by the Ministry of Foreign Trade and Economic Cooperation, a qualified foreign investor may set up a foreign investment company (hereinafter referred to as "holding company"). The main function of such holding company is to invest in China in the forms of joint ventures or wholly foreign capital enterprise A Sino-foreign joint venture in which the holding company subscribes more than 25% of the registered capital shall be regarded as a foreign investment enterprise and entitled to enjoy all the preferential treatment exclusively vested with foreign investment enterprises.
Please analyze, in terms of nationality of company, whether there are any conflicts between this regulation and the current civil or arbitration systems (15%)
2001-PART ONE: PUBLIC INTERNATIONAL LAW
Translate the following legal terms into Chinese and givevery simple explanations. (12 marks)
1 Specialty principle of extradition
2 Displaced persons
3 erga omnes obligations
4 Principle of Non-Refoulement
5 Differential Treatment
6 Transit Passage System
Point out one of representative academic writings of these famous Chinese International Law Scholars. (8marks)
1、Zhou Geng-Sheng
2、Li Hao-pei
3、Wang Tie-ya
4、Zhao Li-hai
Answer the questions. (20 Marks in all)
1 What is the international liability (国际赔偿责任)? (6 Marks)
2 Who is the administrative chief of the United Nations? Please give specific reasons to support your answer. (6 Marks)
3 What are the main differences between the enforcement system of the two international conventions concerning human rights of the U.N concluded in 19667 (8 Marks)
三、请回答下列问题。（共20分）
1．什么是国际赔偿责任？（6分）
2．谁是联合国的行政首长？请给出支持你的答案的具体理由。（6分）
3．请说明联合国1996年两项国际人权公约执行制度上的主差异。（8分）
Case Analysis (10 Marks in all)
1 On Nov.5, 2000, one plane of Singapore Airline was badly damaged due to the negligence of the pilots and a big explosion took place in the international airport of Taibei. The Singapore Airline paid 400,000 USD as the compensation to every victim of this event. Please give your own
opinions on the following issues: The legal basis of the 400,000 USD compensations. (5 Marks)
2. Compare with the relevant Chinese Domestic Civil Aviation Laws and Regulations. (5 Marks)
四、案例分析。（共10分）
2000年11月5日，一架新加坡航空公司飞机由于飞行员的疏忽而受到严重损害，并在台北国际机场发生了大爆炸。新加坡航空公司对这次事件的受害人每人支付了40万美元的赔偿金。请就下列问题发表你的意见。
1．40万美元（每人）的赔偿金的法律依据是什么？（5分）
2．请与中国国内相关的民有航空法律法规相比较。（5分）
PART TWO PRIVATE INTERNATIONAL LAW
Translate into Chinese and explain briefly the following legal terms (15 marks) :
1 Francescakis
2 varaiable point of contact
3 locus regit actum
4 universalism-internationalism school
5 ADR
Answer the following questions in detail:
1 Please describe the relationship between the proper law of the contract and the applicable law of the contract(10 marks)
2 Please express your personal opinion upon the judicial supervision over international commercial arbitration(10 marks)
3 Please analyses the impacts of economic globalization on the development of China's private international law (15 mark)
二、请详细回答下列问题
1、请论述合同自体法与合同准据法的关系。（共10分）
2．请就国际商事仲裁的司法监督问题陈述自己的意见。（共10分）
3．请分析经济全球化对中国国际私法发展的影响。（总共15分）
Part Three International Economic Law
Please read carefully the following questions in three parts and answer them in CHINESE.
Translate into Chinese and explain briefly the following terms (each 3 marks, total 15 marks)
1 FCA (a trade term)
2 Rule of Strict Compliance
3 Covenant (as used in loan agreement)
4 Accumulation of Imports
5 Cancellation of Arbitral Award
Answer the following question in detail (each 15 marks, total 60 marks).
1 Describe the legal sources of dispute settlement mechanism under the WTO framework, and explain its development compared with that of the GATT. (15 marks)
2 Explain some aspects of the PRC Antidumping Regulations (March 25, 1997) that, you consider, should be modified or revised so as to be in conformity the 1994 Antidumping Agreement when China becomes a member of the WTO. (15 marks)
3 On October 1, 1999 the Contract Law of the P.R.C. came into effect that constituted a milestone in the development of legal system of China, In light of this Law the parties may conclude a contract in written, oral or other forms, describe the legal effect of this uniform Contract Law on the formality of contracts for international sale of goods between Chinese parties and foreign parties. (15 marks)
4 Describe the main differences between the INCOTERMS 2000 and INCOTERMS 1990.(15 marks)
二、请详细回答下列问题。（每题15分，共60分）
1、请论述世界贸易组织框架下争端解决机制的法律渊源，并与关贸总协定相比较说明其发展所在。
2、请说明你认为中国在成为WTO成员方后，为与1994年《反倾销协议》保持一致，《中华人民共和国反倾销条例》（1997年3月25日颂布）应当修改的若干方面。
3、1999年10月1日，《中华人民共和国合同法》生效，这成为中国法制发展史上的一个里程碑。依据该法，双方当事人可以以书面、口头或其他形式订立合同。请论述这部统一《合同法》对中外双方当事人之间缔结的国际货物买卖合同的形式产生的法律影响。
4．请评述INCOTERMS2000与INCOTERMS1990的主要区别。（共15分）
5．CFR和CIF中A8条款的改变。
6．关于清关
7．FOB术语中的警告
8．关于Incoterms变体的提醒
Case Analysis ( 25 marks)
A Chinese company and a Malaysian company concluded a joint venture contract. Under the contract the parties mutually agreed that the Chinese law was the applicable law of the contract. Furthermore, an arbitration clause was incorporated into the contract which stated that "Any disputes, controversy or difference arising out of or in relation to lifts Contract or for the breach thereof, shall be settled by arbitration in Hong Kong, pursuant to the rules of International Chamber of Commerce. The award of such arbitration shall be final and binding upon the parties hereto. During the process of performance a dispute came out between the two parties. The Chinese party brought a lawsuit in a local Intermediate People's Court. Upon receiving the litigation notice, the Malaysian party challenged the jurisdiction of the court on the ground that there is a valid arbitration clause in their contract, so this dispute shall be settled by arbitration in Hong Kong. The Chinese party further argued that two parties have already agreed upon the proper law of the contract being Chinese law, under the relevant Chinese law the arbitration clause in question is invalid. Therefore, the Chinese court shall have the jurisdiction over the case.
Questions:
1) If you were the judge in charge of hearing this case, how would you decide the jurisdiction of the court over this case? You should describe in detail your reasons, legal basis and doctrines if any.
2) If you considered that this arbitration clause is invalid and the court should have jurisdiction, what you should do before you render an order to that effect, under the relevant procedural requirements by the Supreme People's Court of China?
三、案例分析
一家中国公司和一家马来西亚公司订立了一项合营企业合同。在合同中，双方同意以中国法作为合同准据法，并且合同中也定有仲裁条款。仲裁条款规定：对于由本合同产生的或与本合同有关的任何争议、争端和异议，或对本合同的违反，应依据国际商会仲裁规则在香港仲裁解决，仲裁裁决应当是终局的，对双方当事人有拘束力。
在履行过程中，双方当事之间发生了争议。中国当事人一方向某一地区中级人民法院提起了诉讼，收到应诉通知后，马来西亚一方当事人对法院管辖权提出异议，认为合同中有有效的仲裁条款，所以争议应在香港通过仲裁解决。中国当事人一方进一步争辩认为双方早已同意合同准据法为中国法，依据中国有关法律此争议中的仲裁条款无效，因此，中国法院对本案有管辖权。
问题：1．如果你是负责本案审理的法官，你将如何决定法院对本案的管辖权?请你详细论述你的理由、法律依据，如果有任何理论，请一并陈述其理论依据。
2。如果你认为这条仲裁条款是无效的，因而法院应对该案享有管辖权，依据中华人民共和国最高人民法院的相关程序要求，在你做出上述裁决之前,你应当先作什么?
2002年 Part Three：International Economic Law
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.subsidy
2.general average
3.bill of exchange
4.negative pledge
5.ICSID
II. Answer the following questions. (total 45 marks)
1. Describe the complete procedure of accession to the WTO. (10 marks)
2. Describe the provisions regarding the passing of risk under the UN convention on the Contracts for the International Sale of Goods. (10 marks)
3. Describe the trade related investment measures that are prohibited by the TRIMS Agreement. (10 marks)
4. Describe the means of foreign trade control under the legal framework at present (November2001) before China's accession to the WTO. (10 marks)
5. Describe the differences between national treatment under GATT and that under GATS (5 marks)
III. Case Analysis (total 40 marks)
l. Company M, a Chinese company signed a contract with Company P, a company of Country B, to sell goods to P. Both China and Country B are members of the UN Convention on the Contracts for the International Sale of Goods. The goods were to be delivered in 5 installments and the payment was to be made in proportion to the delivery. After 4 deliveries and 3 payments were completed, M went insolvency. Company S, a Chinese company, acquired the assets of M with the receivables under the said contract. M made the last delivery and notified P that the remaining payments should be made to S rather than to itself. However, the two payments were still made to M. P explained that the 4th payment was made before the notice was received, and the last payment was made due to a mistake of one of P's employee. S applied for arbitration claiming for the two payments as receivables. The Arbitration clause of the contract between M and P provided that "any dispute rising out, relating to or caused by this contract should be resolved through consultation. In case consultation falls, the parties agree to solve their dispute through Arbitration by the China International Economic and Trade Arbitration Committee Shanghai Sub-Commission. The arbitration award shall be final." There is no provision about applicable law of the contract P argued that it did not have contractual relation with S and the arbitration tribunal did not have jurisdiction.
Does CIETAC Shanghai Sub-commission have jurisdiction over this case? Give Reasons for your answer. (15 marks)
2. The American Coca-Cola Company found that a domain name "Coca-Cola.com.cn" was registered by a Chinese citizen. The Chinese citizen is not doing business, nor has he tried to sell the domain name registration to anybody. If Coca-Cola wants to challenge this domain name registration, what actions can it take? What reasons can it put forward? If you were the Chinese citizen, what arguments can you raise against the challenge? (10 marks)
3. A Chinese Company G and a foreign Company F set up a contractual joint venture in 1995.The contract provided, among other things, the following: Each party was to contribute 50% of the registered capital; in addition, G's right to use the building was a form of its investment and F would put in some equipment as its investment. F was exclusively responsible for the management and daily operation of the joint venture. The joint venture was t pay to G amount and only that mount of money each year for the term of the contract of I5 years as profit no matter the joint venture made a profit or loss that year. Disputes relating to the contract was to be solved through arbitration by CIETAC. After 4 years of successful operation, G complained that the joint venture failed to pay agreed profit to it since 1999. G applied for arbitration at the CIETAC---Shanghai Sub-Commission. F made two arguments: First, the forum of the arbitration should be in Beijing since CIETAC is in Beijing. Secondly, it was the joint venture not F who should have paid G and F was not responsible for the payment.
Give your comments on the two arguments put forward by F. (15 marks)
Part One: International Law
1. Translate and explain the following: (15 marks)
1) supranational law
2) International Law Association
3) Jus ad Bellum
4) international humanitarian law
5) treaty suspension
2. Give out the whole names of the following organizations: (5 marks)
1) WHO
2) UPU
3) WMO
4) ICAO
5) UNESCO
3. Please analyze the following issues: (total 30 marks)
1) The relationship between the principle of sovereignty and principle of human rights (8 marks)
2) The dispute settlement system of UN Convention on the Law of the Sea (7 marks)
3) The meaning and significance of the "the Martens Clause" (7 marks)
4) The US government's attack on Afghanistan, after the September 11 event, according to its "right of self-defense" (8 marks)
Part Two Private International Law
A. Translate into Chinese and explain briefly the following legal terms (15 marks):
1. locus regit actum
2. latente gesetzes kollisionen
3. Comitas Gentium
4. competence interne
5. jus inter gents
B. Answer the following questions in detail:
1. Please describe the relationship between loi d'application immediate and unilateral conflict rule. (10 marks)
2. Please analyze the impacts of Internet on the traditional principles and practices of jurisdiction. (10 marks)
3. Please express the differences of choice of substantive law between litigation and international commercial arbitration. (15 marks)
华东政法学院2003年研究生专业试题----国际法学部分
Read the following questions carefully and answer them in CHINESE.
国际经济法
I. Translate into Chinese and explain briefly the following terms: (15 marks)
1. Doha Agenda
2. the principle of exhaustion of local remedies
3. priority (as in intellectual property)
4. jurisdiction of source of income
5. pari passu Covenant
II. Answer the following questions. (21 marks, 7 marks each)
1. Briefly describe the provision of the UN Convention on Contracts on International Sales of Goods on late acceptance.
2. Briefly describe the differences between “geographical indication” and “mark of origin”.
3. Briefly describe the principle, period and limitation of liability for carriers provided for by the Hamburg Rules.
III. Analyze the following case. (14 marks)
Company B and Company S, companies established in countries B and S respectively, sighed a contract in January 2002. The contract provided that Company S would sell and Company B would buy 5000 tons of product G. The price and other terms were agreed upon by the parties and the goods were to be shipped in 5 installments from May 1, 2002 to June 10, with 2 weeks interval and 1000 tons for each shipment. It was provided that the payment will be in 5 separate L/C, each time matching the shipment. It was also provided that the buyer would pay for a shipment after inspection that the goods met the quality standard of the contract.
Two shipments were accepted without any problem. When inspecting the third shipment, Company B found that the about 40% of the packaging of the goods were seriously broken. The L/C for the second shipment was already issued but Company B learned that the negotiating bank had not paid Company S. Company B asked the bank to stop payment and asked Company S to enter into negotiation.
Company B asked Company S to reduce the price of the goods. Company S argued that the broken packages did not affect the quality of the goods and refused to reduce the price. Company B declared that the contract was terminated because Company S breached the contract. Company S insisted that it did not breach the contract and the contract should be performed in full.
Country B is a member of the UN Convention on Contracts for the International Sales of Goods (CISG) while Country S is not.
1. Does CISG apply to this case? Why?
2. Should the bank stop payment of the second L/C? Why?
3. Should Company B issue the third L/C for the third shipment? Why?
4. Was Company B correct in what it did for the third shipment of the goods? What should Company B have done?
5. What can Company S do facing this situation?
国际公法
Translate into Chinese and briefly explain the following terms. (15 points)
1. jus inter gentes
2. Dualism
3. judicial immunity
4. reversionary rights
5. sector principle
Indicate the nationality and one of his major works of the following scholars: (10 points)
1. Garotius
2. Lauterpacht
3. Vattel
4. Kelson
5. Verdross
Answer the following questions: (25 points)
1. What is your opinion concerning the legal aspects of humanity interference? (12)
2. Give your comment on the veto rights of the permanent members of the Security Council of UN. (13)
国际私法
1. Some Chinese scholars hold that Judicial Interpretations are one of the sources of China’s private international law. Do you agree or disagree to this opinion? Please give your reasons. (15)
2. Make comments on the trend of softing process related to the application of rules of conflict of laws. (15)
3. Please design a typical case to illustrate the theoretical and practical significances of identification. (20)
国际经济法部分试答试题，仅供参考
一、多哈议程：WTO于2001年11月在多哈会议上决定的新一轮多变谈判的议程
用尽当地救济原则：除非东道国法律另有规定，外国投资者不得将与东道国政府有关的投资争议枝节提交国际机构解决
优先权：工业产权的申请人第一次在某个国家提出申请后的一定时期内在其他国家提出申请，其他国家以其第一次申请的日期为申请日
收入来源地管辖：一国对跨国纳税人在该国领域范围内的所得课税的权利
比例平等条款：借款人保证贷款人享有和其他无担保权益的债权人一样平等的地位；无担保权益的债权人必须按比例平等原则以相同的比例获得赔偿。
二．
1、如果要约人毫不迟疑地通知承诺人表示接受，逾期承诺仍有承诺的效力。3
如果承诺是在传递正常能及时送达要约人的情况下寄发，则该逾期承诺仍有承诺的效力，除非要约人毫不迟疑地通知承诺人表示他认为要约已经失效。4
2．地理标志指表明产品产于某地，该产品的特性与产地有密切联系的标记；原产地标记是根据不同国家的规定，表明产品属于某个国家或地区生产的标记 4
地理标志是TRIPS协议保护的知识产权之一，而原产地标记是各国判断实行何种贸易措施的依据
3．承运人实行完全过失责任原则，采用推定过失与举证责任项结合的原则。 3
责任期间为货物在装货港、运输途中和卸货港处于承运人掌管期间 2
对货物灭失或损坏的，每件835SDR或毛重每公斤2.5SDR 2
三、
1、一般来说不适用，但如果国际私法规则导致适用某一缔约国的法律，而且S国的法律对此没有保留，则可适用；也可约定适用 3
2、不应当，因为信用证支付实行单证严格相符原则，只要单证与信用证所列一致，银行就必须付款 2
3、根据贸易惯例，第三批货物的信用证应当已经开出，根据题意，买方是在收到第三批货物时发现包装问题的，因此此时信用证应当已经开出了 2
4、要求降价是可以的，但宣布违约没有依据。包装破损的责任还没有分清，且不说货物质量没有影响，即使是卖方责任，也不构成根本违约。而且分批装运的原则就是每一批货物分别处理，不涉及其他各批。 4
5、卖方应当弄清包装破损的责任，然后与买方谈判，如果是卖方的责任，卖方可以适当降价，如果是运输人的责任，则根据情况处理。卖方应当继续发出其他各批货物，如果卖方拒绝收货，卖方可以要求卖方承担违约责任。 3
2005年国际法专业试卷
PART ONE: Public International Law
I Please Explain the Following Definitions
1 res nullius无主物
2 pacta sunt servanda约定必须遵守
3 Calvo Clause卡沃尔条款
4 International Humanitarian Law国际人道主义法
II. Provision AnalysisThe following provision is quoted from an important treaty:
ARITCALE 38
(1) The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognized by civilized nations;
(d) subject to provisions of ARTICLE 59, judicial decisions and the teaching of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
(2) This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.”
Please answer the following questions:
1. Which treaty is the provision quoted from?
2. Can you explain the meaning of this provision briefly?
3. Can you make any comment on this provision?
III. Please briefly tell the difference between state responsibility and international criminal liability.
IV. Please analyze Humanitarian Intervention from the perspective of International Law.
1、简述国家责任和国际刑事责任的区别
2、从国际法的角度谈人道主义干涉
PART TWO Private International Law
I. In resent years, Chinese academic circles consistently give impetus to the codification of China’s private international law. Do you think it is possible for the National People’s Congress to accept this legislative mode? Why?
II. Please analyze the deficiency of the provisions concerning jurisdiction stipulated in Chapter Four of China’s Civil Procedure Law.
III. Briefly illustrate the new development of lex personalis.
1.近期我国国际私法学术界仍然坚持提倡国际私法法典化,问人大该不该接受这种立法模式。
2.谈中国民事诉讼法第四章关于管辖权的不足之处。
3.谈属人法的新发展
PART THREE: International Economic Law
I. Give the full term of the following abbreviations in English, translate into Chinese and explain briefly:
1. OCED经合组织
2. FOB
3. TRIPS
4. L/C
5. SDR特别提款权
II. Briefly describe the following:
1. Source of the dispute settlement procedure under WTO.
2. The concept of fundamental breach under UN Convention on Contracts for the International Sales of Goods.
3. The major amendments of China’s Foreign Trade Law in 2004.
1、请问WTO贸易争端解决机制的来源是什么？
2、请问CISG关于根本违反合同的规定。
3、请问对外贸易法的最新修改主要有哪些？
III. Analyze the following case
Company A is a company engaged in foreign trade and located at Waigaoqiao Tax Bond Area in Pudong District, Shanghai. In April 2004, Company A signed a Cooperation Agreement of 5 years with Company B, a company in Jiaxing City, Zhejiang Province. The Agreement provided, among other things, that Company A was to buy from Company B sportswear; the order would be sent each time with the size, color, number of sportswear and price indicated in the order. The order would also instruct Company B to ship the goods to a foreign receiver. The Agreement also provided that when Company B had no foreign trade rights, it would entrust another foreign trade company (Company C) to handle the export process and the payment would be made from Company A to Company B through Company C. The Agreement provided that any disputes between, arising out or relating to the Agreement would be resolved through consultation. If consultation failed, either party had the right to bring the matter to CIETAC.
Orders were sent to Company B, all of them were fulfilled. Company A paid money to Company C, which Company B admitted that it had received. Company B claimed that Company A had not made full payment and brought the dispute to arbitration. Company A made following defense: CIETAC had no jurisdiction over this case because the Agreement between Companies A and B was invalid due to Company B’s lack of right to do foreign trade. The price was not mentioned in the orders but in a separate foreign trade contract between Company A and Company C, who made no claim. Company B asked the arbitration tribunal to dismiss the case.
It was found through the arbitration hearing that neither the Agreement nor the orders contained any clause of price. The agreement between Company B and Company C was an agency agreement, where no price of the goods was mentioned either. It was found that a contract between Company A and Company C contained price of the goods. The price was paid in full and was forwarded by Company C to Company B, which Company B had received.
Comment on the defense of Company A and give your opinion on how to decide this case.
关于CIETAC是否有管辖权的案例以及如果处理此案。
04年专业课
名词解释：（5 X 2'=10'）
1,Right of self-preservation
2,Right of Archipelagic sean lanes passage
3,Mandate system
4,Justiciable disputes
5,International Penal Judicial Association
二，观点评论(5 X 3')
1,International humanitarian law is a part of international human rights law.
2,Warshaw system belongs to the international private law.
3,International criminal law equals internatinal law and internal criminal law.
三，论述题（25'）
1, There are 4 kinds of immunity right in international law . What are they and how do you understand them ? (15')
2, Why we say Iraq war lunched by US violates international law ? (10')
国际私法部分
1 what are the provisions in China Civil Procedure law relating to foreign-related divorce case ? Is it possible that these provisions violate the principle Res Jurisdicta (一事不再理)?
2 what is the disadvantage of the collective jurisdiction of foreign-related civil and commercial cases ? （丁伟《涉外民商事案件的集中管辖问题》）
3 Please expound the significance and function of the General Part of the Internationl Private Law Code.
（2003年中国国际私法学会年会论文集第一篇）
国际经济法部分：
名词解释（5 X 3'）：
1 INCOTERMS
2 Countervailing Duty
3 Amicus Curiae
4 Base company
5 Syndicated Loan
二 简答（3 X 7’）
1 Please briefly describe the parties in the L/C circulation.
2 Please briefly describe the determination of dumping under the WTO Anti-dumping Agreement .
3 Please describe the requirements of jurisdiction of ICSID.
三 案例分析（14'）
On May 15, 2003, company B in country M sent a fax to company S in country X, offering to buy from company B 10,000 units of goods at the FOB price of US$150 per unit. Company B asked company S to reply no later than May 22.Company S sent a replay via fax on May 18, agreeing to sell 10,000 units of goods at the FOB pric of US$150 per unit, but provided that any dispute should be resolved through litigation, which was not mentioned in company B's fax. Company S set the reply date to May 22. Company B sent a fax on May 23, accepting all the terms. By that time, the price of the goods in the international market had gone down and company S immediately sent a fax to company B concluding the deal. It was Friday afternoon and Mr. Smith, the person in company B receiving the fax, did not give the fax to the salesperson on May 30. The salesperson notified company S that company B was not going to buy from company S at the FOB price of US$150 per unit. Unless company S agreed to lower the price to US$145 per unit, company B would not buy any goods from company S. Company S insisted that there was a cpmtract and it was ready to ship the goods. The two companies contacted via telephone and fax but no result was achieved. Since company B refused to conclude the deal, company S sold the goods to another company one month later. By that time the price of the goods went from US$143 to US$138 per unit. Company S sued in court asking company B to pay US$120,000 as damages.
Both countries M and X are members of the UN Convention on Contracts for International Sales of Goods.
If you were the judge, how would you decide the case? Please give brief reasons for your dicision. |
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发表于 2006-6-13 12:18:59
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