2009年对外经贸大学法学基础综合试题

2009年对外经贸大学法学基础综合 试题 一、选择题(共60 分,60 个,1分/题,括号中仅仅为自己的选项) 1.法律规范结构的二要素说认为法律规范由( 行为模式)和后果两部分组成。 2.(分析法学派)的出现标志着法学作为独立学科 的出现,其余有一个选项是自然法学派. 3.从方法论上法学分为( 理论法学与应用法学) 4.(亚里士多德) 提出良法与法治,考的是 亚里士多德的关于良法与法治的一句名言. 5.(法律推理) 与法律发现、法律解释等构成司法过程中的法律方法. 6.(公序良俗原 则)是实体性法律原则,其余有一个选项是习惯. 7.(国际条约) 是中国法的形式, 8.法律移植的最高形式是(区域性法律统一运动 和世界性法律统一运动) 9.(法律汇编) 不具有立法效力,其余两个选项为法律清理与法律编纂. 10.(对个人尊严的尊重) 是正义 的底线 11.(法律历史传统的不同)是划分两大法系的依据 12.法律责任包括行政法律责任狭义上的执法指工商监督局的检查 1 3.在法的效力上中国采用综合原则第二性的权利是( 违约责任和侵权责任)，其余的选项都有“纳税义务“ 14.瑞士是民商合一 1 5.我国物权法规定用益物权是( 地役权), 其余两个选项是典权和国有土地使用权. 16.关于按份共有,我选的是共有物的分 割须经三分之二以上共有人同意 17.债权让与未通知债务人的对(债务人)不发生效力, 其余选项是债权人和受让人. 18债的标 的是(给付行为), 其余有一个 选项是 财产. 19以不动产作为标的的是(质权),其余有一个选项是抵押. 21(中国银行)是社团法人, 其余两个选项有一个是银监会 22 甲已解除父子关系的协议是否有效?(我选择的是无效,因为违反公共利益) 23.下列关于权利 能力说法正确的是(胎儿在遗产继承上有权利能力) 24.对于有限合伙人的权利说法正确的是,( 我选择的是有限合伙人不能执 行合伙事务) 25.一物一权指的是(一物之上只能设立一个所有权) 26.下列可以作为征收的对象是(某人的房屋) 26.我国合同法 规定提存的原因是(债权人下落不明) 27.保证人未约定保证责任的为保证人承担( 连带保证责任) 28.小偷将偷来的电视机又偷 偷放回原处的是(犯罪既遂),其余有一个 选项是犯罪中止. 31 不作为分为(有纯正的不作为与不纯正) 32.假想防卫的以过失犯罪论处怎么论处( 我选的是间接故意) 33.间歇性精神病人在犯 罪时精神正常,被抓时精神病患是否应当负刑事责任, 我选择的是应当负刑事责任 34.国有商业银行银行职工利用职务之便利, 挪用客户资金炒股的至案发时仍未归还,以什么罪论处. 我选的是挪用资金罪( 其余的选项贪污罪和挪用公款) 35.剥夺政治权 利的可以(当人集体经济组织的领导)( 我的选择) 36.误将什么当毒药使用的是手段认识错误,其余有一个选项是对象错误 37. 爆炸并破坏公共交通工具的是(想象经合)( 其余有一个选项是法条竞合),相同的是三个选项都规定从一重罪处罚. 38.累犯可以 适用(减刑), 其余有一个 选项是缓刑 39.明知是他人偷来的电脑代为出售的，单独构成犯罪,其余有一个选项是构成共犯. 40.为 走私分子提供帐号的按走私罪共犯论处 41 下列犯罪犯罪必须有情节严重规定的是(故意泄露国家秘密罪) 其余选项是生产销售有毒有害食品罪和走私文物罪. 42.罪责刑 的经典描述是犯罪行为和个人情况综合考虑 43 被判处管制的人，未经批准私自到外地经商,且经过公按机关多次通知仍未归 回本地的应该(取消管制)(其余选项是是行政处罚和以脱逃罪论处) 44.死刑缓刑可以减为15- 20年的要求是(有重大立功表 现), 45.下列关于条约的效力说法错误 的是( 多变与双边的价值是一样的) 46.国际习惯，也是选 择错误的好像是第二个，但记不清内容了 47.有权向国际法院提出咨询的是联合国大会,其余有一个选项是联合国会员国 48. 关于使馆的财产能否被征收 49. 我国政府至今仍未签署的条约是(公民权利与政治公约) 50.适用于石油的买卖，其余有 一个选项是拍卖。 51. 发价的撤回应早于发价到达 52.将所有权与风险转移联系起来的国家是(英国), 其余选项是德国和美国. 53.根据 CISG,对货物重量有异议时的以(净重) 计算. 54.联合国买卖合同不涉及(合同的有效性) 55.欧盟的法律可以直接决定个 人的权利与义务(我的选项) 56. 欧盟的环保法赔偿直接受害人和间接受害的损失( 我的选项) 57.欧盟的环保法在确定损害时两 个都必须满足(我的选项) 58. 欧盟的某些法律有强制性并提先公共政策( 我的选项) 59.根据我国物权法，属于物权登记的 是(就房屋买卖进行预告登记)，其余有一个选项是甲对已的房屋所有权提出异议登记。 二、简答题(共32 分,8 分/题) 1.简述有条件的“特别法优于一般法”的规则. 2.自首的构成条件以及其与及坦白的区别. 3.物权法上的征收条件. 4.国际条约中的贸易义务与wto协议中的贸易义务的关系. 三、分析论述题(共58 分,14.5分/题) 1.论法律至上 . 2.论单位犯罪的概念、特征、认定方法及处分原则. 3.论效力未定的法律行为。 4.根据我国公司法规定，简述允许公司回购股票的具体特殊情况以及公司持有自己股份不得享受那些股东权利。 2002年对外经贸大学国际法学专业英语试题 一 案例分析（用中文回答）40% Stone v. American Lacquer Solvents Co. 343 A. 2d 174 (1975) Harold E. Stone became chairman of the board of directors of American Lacquer Solvents Co. ( hereafter referred to as American) on December 7, 1967. On that date, Americans board of derectors adopted a resolution that upon Stones death, his wife, Rachel, would be paid an $8,000 annual pension by American until her death or remarriage. Teh resolution was adopted in consideration for services to be rendered to American by Stone, and it further provided that it could not be revoked without his consent. In March 1968 Stone and his wife encountered martial difficulties. Stone contacted Shaw, the president and general manager of American, and told him that he wanted the pension resolution cancelled. Shaw contacted the companys legal counsel and, acting in accordance with his advice as to the procedure to be followed, prepared a letter from Stone to the board of directors of American, saving, “It is my wish that the Resolution dated December 7, 1967 concerning a pension for my wife Rachel be rescinded.“ Stone signed and personally delivered the letter to Shaw on March 3. On March 11, 1968, Shaw convened a special meeting of the board of directors of American. Five of the seven members of the board attended the meeting; and when Stones letter was brought to their attention, they voted unanimously to rescind the resolution of December 7, 1967. Stone was not notified of the meeting and did not attend. Stone died on November 1, 1968; and when American refused to pay his widow, Rachel, the pension provided for in the resolution, she sued for specific performance. The trial court ruled that the resolution and been validly rescinded by the board at the meeting of March 11, 1968, and hence the plaintiff had no claim. She appealed the decision. Eagen, Justice . . . As a general rule the directors of a corporation may bind a corporation only when they act at a legal meeting of the board. If they purport to act at a meeting which is not a legal meeting, their action is not that of the corporation, and the corporation, absent ratification or acquiescence, is not bound. As to special meetings of the board of director of a corporation, the general rule in Pennsylvania is that such a meeting held without notice to some or any of the directors and in their absence is illegal, and action taken at such a meeting, although by a majority of the directors, is invalid absent ratification or estoppel. However, this notice requirement may be waived by a director either prior or subsequent to the special meeting, provided such waive is in writing. Additionally, any action which may properly be taken at a meeting of a board of directors of a corporation may be affected and is binding without a meeting, if a consent in writing setting forth the action so taken is signed by each and every member of the board and filed with the secretary of the corporation. A reading of the trial courts opinion filed in support of its decree upholding the legality of the Boards section of March 11, 1968, rescinding the Boards prior Resolution providing for the payment of the pension to the plaintiff was based on three grounds, any one of which, if corret, would warrant its ruling. First, the court conclude that Stones letter of March 3, 1968, constituted a consent to the Boards subsequent action rescinding the pension Resolution. The difficulty with this position is that the applicable statute requires that such a consent be executed after the meeting and that it specifically set forth the action taken, and that it be filed with the secretary of the corporation. Stones letter does not meet these requirements. Secondly, the court conclude that Stones letter of March 3, 1968, constituted a waver of receipt of notice of the meeting of March 11, 1968. The difficulty with this position is that the letter does not refer to the meeting or indicatein any way that notice therof is waived. The letter amounts to no more than an expression of desire or consent to rescind the pension Resolution. In connection with its conclusion that Stones letter constituted a waiver of notice of the meeting, the court reasoned that no purpose would be served by Stones presence at the meeting since the other Directors were merely acceding to Stones wishes and request. This analysis overlooks the rational for the salurary rule that all direcors receive notice of special meeting. That rationale is that “ each member of a corporate body has the right of consultation with the others, and has the right to be heard upon all questions considered, and it is presumed that if the absent members had been present they might have dissented, and their arguments might have convinced the majotiry of the unwisdom of their proposed action and thus have produced a different result.“ We agree with this rationale and, in view of the presumption embodied therein, we cannot concur in the trial courts premise that Stone and other Directors were of one mind as regards the pension rescission. In relation to this, we specifically note that another member of the Board of Directors failed to attend the meeting of March 11, 1968, and there is nothing in the record to show if he received notice of the meeting, or ever consented to the action taken the meeting. Finally, the court concluded that the rescinding resolution of Board was voidable only and that Stones silence and failure to object thereto prior to hes death amounted to a ratification. The difficulty with this position is that there is nothing in the record to show that Stone was ever made aware that the meeting of March 11, 1968, had been held or knew the rescinding resolution had been adopted by the Board. Under the circumstances, it cannot be said a ratification was effected. Reversed and . remanded for further proceeding. 思考题： 1.请以时间顺序为线索陈述本案基本事实。 2.为什么原告要求实际履行的救济方法？ 3.根据宾州公司法， 在什么情况下董事会特别会议可宣布为无效？ 4.初审法院是基于哪三条理由驳回原告起诉的？上诉法院是如何分别否定这三条理由的？ 5. Mr. Stone 生前 还可以采取什么补救办法避免出现本案判决？ 二、 英译汉 （共60分） 1、 APPLYING VALUATION THEORY TO LAW PRACTICE We have seen that some of the poorest methods of valuation are often used in practice. And what of the undisputed favorite- DCF? One writer says succinctly: “capitalization of earnings ordinarily is not a desirable method of setting the values of shares in a close corporation.“ This is not because it doesnt make sense, but because it requires estimationof the inestimable: future cash flows and the appropriate discount rate. Thats only two things to estimate, as we said before, but they are often too difficult to serve as good planning guides. How then do we values in practice? We use the information we have, trying best to stick to the sensible theory of DCF. Applying theories of valuation to a world of imperfect knowledge is the job for the accountant, appraiser, financial analyst and entrepreneur. And it is the good attorneys job to understand what these people are doing when legal issues arise. The next part reviews the bookkeeping and related issues of making payments to owners, and in the next three parts we turn to the most common applications of this valuation theory. 2. CORPORATE GOVERNANCE There is no expression in German law corresponding to the one of “ corporate governance.“. As seen from the American perspective corporate governance deals with the role of the different interests relevant in a corporation and their representatives and ultimately the question of how the law regulates or should regulate thes roles. German law, including employees among the agents of the AG who participate in management has already made an important step into that direction. The corporation does not only serve the interests of the shareholders. Taking into account other interests as opposed to only those of the shareholders is visibly reflected in the notion of the “ interest of the corporation “ as a formula to harmonize the different powers and groups acting in a corporation. One of the questions raised in this context is , which particular interests are to be considered as relevant for the AG in certain situations. Another question to be answered is according to which criteria conflicts between them are to be decided. 3. Appraisal Many state statutes provide that shareholders may have the right to seek an appraisal of their shares in certain fundamental transactions such as a merger. In the nineteenth century when corporations were small and formed for limited pruposes mergers required a unanimous shareholder vote. As corporations grew that requirement was viewed as restrictive and was changed to a lower vote but the legislatures provided for and appraisal remedy. With appraisal, shareholders can seek a court valuation of their shares based upon fair values and be paid in cash. This right of exit can serve as a monitoring device because arguably directors would seek the highest price in such a transaction to avoid many share holders seeking this remedy. But appraisal has limitations because it used to employ conservative methods of valuation, it was time consuming, did not require any payments until the appraisal proceeding was completed, attorneys and experts fees were expensive and interest was not assured. 4. “Classified“ Boards of Directors Most states permit a board of directors consisting of nine or more directors to be “classified“ or “staggered“ so that approximately one-third of the directors are elected each year, and each individual director is elected for a three year term. In states where cumulative voting is mandatory, and sometimes in corporations formed in other states as well, it is not uncommon to employ this device to minimize the effects of cumulative voting because it takes a larger minority interest to elect one of three directors than it does to elect one of nine directors. For example, if there are nine directors elected each year, ten per cent of the stock can elect a director; if the nine directors are classified and three are elected each year,