国际商法复习重点整理.doc

国际商法复习重点整理 考试题型：选择题 10*2=20判断题 10*1=10名词解释 5*5=25简答题 3*6=18案例分析 6*2=12论述 151. Legal system （两种法律体系的区别和特点）Civil law system: 1) statutory law, based on a comprehensive code 2) France, Germany, Switzerland etc 3) emphasize the importance of written law 4) case has no legal validityCommon law system: 1) derived from custom, usage and court decision or court-established law 2) England, USA, Canada etc 3) evolves through case precedent, binding the later2Incoterms 2000 (the International Rules for the Interpretation of Trade Terms revised in 2000 by International Chamber of Commerce)UCP600 (the Uniform Customs and Practice for Commercial Documentary Credits revised in 2007 by International Chamber of Commerce)（了结）3. Legal Characteristics of corporation:（1）Ownership of Property（2）Independent legal personality/status（3）Centralized management（4）Limited Liability: shareholders share limited liability to the extent of capital contribution4. Classification of Corporation (比较和区别这两种公司)(1)Corporation with Limited Liabilitya. the number of shareholders confined by law and regulationb. stocks not issued and could not be freely transferred(Transfer of stocks be strictly restricted. Under the same condition, other shareholders ownc. priority in buying this stock. Thus, the relationship between shareholders is much stable) shareholders assume limited liability to corporationd. evident characteristic of personal closure(2)Corporation Limited by Sharesa. the number of shareholders not limited, usually multitudinousb. the total capital divided into equal stockc. stock be publicly issued and could be freely transferred according lawd. the right of ownership and that of operation be separatee. the scale is much bigger than that of corporation with limited liability5. （比较子公司和分公司区别）Subsidiary: (1) legal person;(2) independently assume civil responsibility, although be controlled somewhat by parent corporation.Branch: (1) with no legal person status;(2) its civil responsibility be assumed by the home corporation(最主要的区别：子公司是独立的法人，分公司不是独立法人)6Merger：（）比较吸收合并和新设合并的区别（1）merger by amalgamation（吸收合并）When a corporation has another corporation amalgamated with it, it is merger by amalgamation, and the amalgamated corporation shall be dissolved（2）merger by new establishment（新设合并）When two or more corporations merge to establish a new corporation, it is merger for new establishment, and all parties being merged shall be dissolved（when corporations merge, the claims and debts of all the parties to the merger shall be succeeded to by the corporation that continues to exist after the merger or by the newly established corporation.）7Applicability of CISG（1）The contract is for the commercial sale of goods;（2）It is between parties whose places of business are in different States (nationality or citizenship of individuals is not a determining factor);8Reservation（中国对CISG做的两项保留）a. the reservation towards the applicable scope of CISG:China agrees that CISG shall be limitedly applied to a contract of sale entered into by and between the parties whose business premises are located in the contracting States of CISG, dont agree to expand the applicable scope of CISG in accordance with the conflict rules;b. the reservation towards the form of a contract.9. Structure and Scope of PICCEach article is accompanied by (1)comments and where appropriate by (2)factual illustrations intended to explain the reasons for the black letter rule and the different ways in which it may operate in practice.10Contractual Capacity（1）Common Lawthere are three classes of persons who are not considered to have sufficient capacity to be bound by the contract:a. Minors (typically under 18)b. Mentally Impaired or Incompetent Personsc. Drunk Persons(2) ChinaThere are three classes of capacity:a. Full capacity (age 18 or above, adult)b. Limited capacity (a minor aged 10 or above; a mentally ill person who is unable to fully account for his own conduct)c. No capacity (a minor under the age 10; a mentally ill person who is unable to account for his own conduct)(判断：minor 都是限制行为人。 错)11. OfferAn Offer is a statement by one party to another indicating an intention to enter into a contract on specified terms.China Contract Law define that an offer is an intent indication showing the desire to enter into a contract with others12. Withdrawal and Revocation of Offer（区分撤消和撤回）Before an offer becomes effective, the offeror can withdraw the offer; After an offer becomes effective, the offeror can revoke the offer.13CISG和我国合同法的对比（不可撤消情形）CISGa. if it indicates, whether by stating a fixed time for acceptance or otherwise that it is irrevocable; orb. if it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree has acted in reliance on the offer.China Contract Law a) the offeror has specified a time limit for the acceptance or has explicitly indicated in any other manner the irrevocability of the offer; b) there are grounds for the offeree to maintain the irrevocability of the offer and the offeree has made preparations for the fulfillment of the contract.14.Requirements of Acceptancea. An acceptance must be made by the offeree;b. An acceptance must be communicated to the offeror or his agent;c. An acceptance must be made within the period of validity (late acceptance is a counteroffer)d. An acceptance must match the terms of the offer exactly and unequivocally15. ConsiderationConsideration is one of the three elements of contract formation in common law. It is some benefit received by a party who gives a promise or performs an act, or some detriment suffered by a party who receives a promise. In another word, consideration is what is actually given or accepted in return for a promise16.了解哪种法律使用哪种主义 a. Under the common law system, a contract is formed when the acceptance is dispatched by the offeree. The time of dispatch is the time the letter is put into the hands of the postal authorities, which is known as “Mail-box rule”.（投邮主义）b. Under most civil law states, the Receipt theory is used。（到达主义）17.Promissory Estoppel(禁止反言，考名词解释)a. The doctrine of promissory estoppel prevents one party from withdrawing a promise made to another party if the latter has reasonably relied on that promise and acted upon it to his detrimentb. Estoppel is an equitable doctrine that provides for the creation of legal obligations if a party has given another an assurance and the other has relied on the assurance to his detriment18. According to interpretation by the Supreme Court of the Peoples Republic of China, substantial misunderstanding refers toa. Misunderstanding to the nature of contract;b. Misunderstanding to the other party;c. Misunderstanding to the quality of the contracted object;d. Misunderstanding to the assortment of the contracted object;e. Misunderstanding to the price and expenses19.standard terms“Standard clauses” means the clauses that are formulated in anticipation by a party for the purpose of repeated usage and that are not a result of consultation with the other party in the making of the contract. ”20.Defense for Perform Denial China Contract Law provides three kinds of defense for denial to perform his/her duties: the counterargument right for simultaneous performance(同时履行抗辩权), right of plea against the performance in advance(后履行抗辩权),counterargument right for security(不安抗辩权).21Impossibility of PerformanceChina Contract LawArt. 110 of China Contract Law allows non-performance when impossibility of performance exits,“If either party fails to discharge non-pecuniary debt or fails to discharge non-pecuniary debt as contracted, the other party may demand the discharge, except in any of the following situations: (a) legally or practically the discharge is impossible; (b) the targeted matter of the debt is unsuitable for a compulsory discharge or too expensive for the discharge; or (c) the creditor does not demand the discharge within a reasonable period of timeForce Majeure(不可抗力)The contract law gives a definition on force majeure, “Force majeure means objective situations which cannot be foreseen, avoided or overcome.”22.Anticipatory Breach（预期违约，考名词解释）One contracting party may inform the other party, before the time fixed for performance under the contract, that he will not perform his obligations under the contract. In this situation, the innocent party is entitled to terminate performance of the contract immediately.China Contract Law provides both explicit and implicit anticipatory breach, if either party explicitly expresses or indicates by act its intention not to perform its obligations under the contract, the other party may, before the expiration of the period of fulfillment, demand that the party in question bear the liability for breach of contract.23.Charterparties（主观题）a. Voyage CharterpartiesVoyage charterparties means that a charterer hires a ship and its crew for the carriage of goods from one place to another. The owner agrees to provide a ship at a named port and to carry the goods to the contracted destinationb. Time CharterpartiesThe charterer uses a ship for a stated period of time. He can direct the ship to proceed to wherever it is needed.The charterer normally pays “hire” monthly, the ship owner will be entitled to withdraw the ship if a monthly installment is not paid promptly.c.Charterparties by Demisealso bare boat charterparty in American law, means that the charterer obtains possession and control of the ship and puts in his own master and crew.24.Bill of Lading(名词解释)A bill of lading is a document issued by a carrier to a shipper with whom the carrier has entered into a contract for the carriage of goods. It sets out the terms on which the goods have been delivered to and received by the carrier. Therefore, bill of lading is a property certificate25. Partial Loss.Particular average（单独海损）: a partial loss to the insured cargo and the loss must be borne by the owner of this individual consignment.General average（共同海损）: a loss that arises when extraordinary expenses or losses are incurred in saving the vessel or its cargo from danger at sea. The principle aims to spread the risk of a disaster at sea by making all parties to the voyage contribute to