商法教案(英文版).doc

暨南大学全日制本科课程教案 2006 2007 学年 第 2 学期 课 程 名 称 英美商法 课 程 性 质 专业选修课 教 材 名 称 American & British Commercial Law 适用专业（方向） 法学 学 生 类 别 内招生、外招生 开 课 单 位 法学院 授 课 教 师 朱义坤 职 称 教授 暨南大学教务处 制二00七年 三月 暨南大学全日制本科课程教案填写说明一、用宋体、5号字填写，每项页面大小可按照规定格式自行添减。二、一次课为一份教案（不包括封面）。三、“课程性质”填必修课、专业选修课或公共选修课；“学生类别”填内招生，外招生或内、外招生；公共选修课的“适用专业（方向）”填写“全校各专业”。四、“开课单位”填学院、学系和教研室（无教研室只填学院和学系）。五、授课类型指理论课、讨论课、实验、社会实践、实习或见习课、其他等。 六、“教学内容”应具体，而不应只填写教材章节名称或讲授主题的题目。 英美商法 课程教案授课题目（教学章节或主题）：UK and US Legal System授课类型理论课授课时间2007年3月9日第1 周星期五 第3-4节教学内容（包括基本内容、重点、难点三部分）：Key issues: types and sources of law, court systemDifficult issue: common law 1 Types of law1.1 Substantive and procedural law(1) Substantive law: rights and duties of each person in society(2) Procedural law:protection and enforcement of them1.2 Public and private law(1) Public law: conduct of government and relations between government and individuals(2) Private law: relations between private individuals or groups1.3 Civil law and common law(1) continental Europe; English-speaking world (2) roots in Roman law,codification,passive judge; precedent, judge makes law2 Sources of law2.1 common law: law made by judges,judicial precedent, stare decisis(1) local customs, before Norman Conquest; William I, uniform law(2) precedent; equity law,courts of chancellor, courts of equity; merger of the two in 1865(3) common law; statutory law(4) common law system; civil law system2.2 statutes law: (1) by parliament, state or provincial legislature, or municipality(2) Superiority: overrides common law dealing with same point(3) common law and statute are now closely related(4) administrative law: system of government regulations and sanctions2.3 EU law2.3.1Primary legislation: Treaty of Rome(1957), Treaty of Amsterdam(1999), treaty on EU2.3.2 Secondary legislation: (1) regulations: directly applicable(2) directives: not immediately binding, but require domestic legislation in reasonable time(3) decisions: immediately binding upon those who are addressed 3 Court system3.1 UK Court System (1) single government; not federal structure(2) courts of first instance: original jurisdiction county court: contract and tort case less than 25000 high court: over than 50000; shared jurisdiction: between 25000and 50000(3) appeal to House of lords and leapfrog: permission needed3.2 US Court System(1) Full system of federal courts(2) Three-tier structure: district court(first instance), court of appeals, supreme court(3) State level: three-tier structure in general, trial court, intermediate appellate court, and final appellate court(4) Federal judges are centrally appointed; many state judges are elected by popular votes3.3 Canadian Court System 4 levels of court: Provincial courts, handling the great majority of cases Provincial and territorial superior courts dealing with more serious crimes and also taking appeals from provincial court judgments. Federal Court Trial Division is on the same level responsible for different issues. Provincial courts of appeal and the Federal Court of Appeal Highest level is occupied by the Supreme Court of Canada Canadian supreme court: appeals from provincial and federal system All judges are centrally appointed and paid4 Legal profession4.1 UK and US: solicitors and barristers(1) solicitors: office lawyers legal aspects of business and family contracts,deeds,wills,incorporation etc. preparation for trial: pleadings, interview,notes appearance in some lower courts(2) barristers: litigation lawyers take briefs; opinions on potential litigation4.2 Canada(1) lawyers are both solicitors and barristers(2) bar on provincial basis: a must for barrister to practice law membership in one province cannot practice in another automatically membership in one province may appear before Supreme Court教学手段与方法：课题精讲案例讨论思考题、讨论题或作业：1、Discuss differences between common law and statutary law2、Explain different meaning of common law 3、Discuss the differences between English and American court system参考资料（包括辅助教材、参考书、文献等）：推荐教材：Business & Law, Financial Times Pitman Publishing, 2006. 主要参考书：1.朱羿锟：中国商法（英文版），法律出版社2003年版；2.Evan Maclntyre：Business and Law，Financial Times Pitman Publishing, 2002。3. H Bohlman and M Dundas: The legal, Ethical and International Environment of Business, 清华大学出版社，2004。 英美商法 课程教案授课题目（教学章节或主题）：The Effect of Law on Business Operations授课类型理论课授课时间2007年3月16日第2周星期五 第3-4节教学内容（包括基本内容、重点、难点三部分）： Key issues: civil law, criminal law, tort, contract, legal liabilityDifficult issue: distinction between civil and criminal law 1 Areas of law affecting a business1.1 Civil law and criminal lawCriminal CivilPurposePunishmentCompensationPartiesState v defendantPlaintiff v defendantOutcomeGuilty or not guiltyPlaintiff wins or losesConseq-uenceIf convicted, then sentencedIf he wins, obtains a remedy CourtsMagistrates, or Crown courtCounty or high courtCostsLegal aid; If convicted, pay costsLegal aid; Loser pays all costsFactsBy Magistrateor juryBy judgeLawBy judgeBy judgeStandard of ProofBeyond reasonable doubtOn balance of probabilityExampleMurder, theftContract, property2.1.2 Contract and TortContractTortLiability is voluntarily undertakenLiability is imposed by CourtsLiability is strictLiability is based on faultPut the injured as if contract had been performedPut the injured as if tort had never been committed1.3 Consumer law1.4 Employment law1.5 Property law(1) Real property(2) Personal Property2.1.6 Financing law(1) Loan(2) Bond(3) Shares(4) Security for loan2 Legal duties arising from business activities2.1 Civil duties and criminal duties2.2 Common law duties and statutory duties(1) Most of such rules are statutory(2) They are applied with equal vigor(3) Common law rules shall not contradict statue2.3 Limited and unlimited liability(1) Unlimited liability in usual civil cases(2) Owner of corporation may have limited liability(3) Carrier under maritime law2.4 Fault based liability and strict liability(1) Almost all common law liability in tort is fault based(2) Consumer protection, strict liability(3) Employer liability(4) Legal duties may overlap. Case study 1:Small bakery, supermarket, contractMain problem: loaves do not feed properly through slicing and wrapping machine; called fitter to the machine several times, un-repaired; guard was removed; Operator was requested to manually push the loaf.Operator slips, his hand makes contact with the blades of slicing machine, badly injured; three fingers lost.Unable to deliver goods to supermarket. Only half of the order was performed.One loaf contained a metal bolt falling from slicing machine. Customer broke a teeth when he bit the bolt.Legal duties:(1)Bakery are liable to be prosecuted under Criminal law(2)Bakery to employee: tort of negligence(3) Bakery violated contract(4)Supermarket are strictly liable(5)Bakery are strictly liable(6) If the bakery is partnership, partners are jointly liable3 Legal rights of groups affected by business activities3.1 Employees(1) Collective bargain(2) Mandatory worker compensation3.2 Consumers and customers3.3 Shareholders(1) Minority protection(2) Derivative action2.3.4 Creditors(1) Security(2) Bankruptcy2.3.5 Community(1) Tort(2) Urban planning2.3.6 The State(1) Criminal law enforcement(2) Framework for dispute settlement(3) Government regulation on business affairs(4) State owns big business.教学手段与方法：课题精讲案例讨论思考题、讨论题或作业：What legal liabilities arise from the following cases:(1) Accountant steals money from client(2) Company newsletter mistakenly stated an ex-employee has been convicted(3) Company driver took a short cut across farmers land damaging crops(4) Self-employed technician buys a van with stolen cheque(5)Partners in partnership drive firms van without taxing or insuring it(6) Company director burns company documents.参考资料（包括辅助教材、参考书、文献等）：推荐教材：Business & Law, Financial Times Pitman Publishing, 2006.主要参考书：1.朱羿锟：中国商法（英文版），法律出版社2003年版；2.Evan Maclntyre：Business and Law，Financial Times Pitman Publishing, 2002。3. H Bohlman and M Dundas: The legal, Ethical and International Environment of Business, 清华大学出版社，2004。 英美商法 课程教案授课题目（教学章节或主题）：Characteristics of Businesses授课类型理论课授课时间2007年3月23日第3周星期五 第3-4节教学内容（包括基本内容、重点、难点三部分）：Key issues: forms of business organization and their respective featuresDifficult issue: Public and private company 1 Forms of business organization(1) Sole traders, sole proprietorship(2) Partnerships: general, limited partnership(3) Company: unlimited, limited, stock(4) Non profit-making organization2 Sole trader(1) Unlimited liability: owner(2) No separate existence, not legal person(3) No formality is required for its formation3 Partnership3.1 The relationship subsisting between persons carrying on business in common with a view to profit(1) Relationship subsisting between persons: no new legal person(2) Business: every trade, occupation or profession(3) In common: jointly carry on business,for the benefit of all partners(4) View to profit3.2 Characteristics (1) Agency: Each partner is the agent of the firm and fellow partners(2) Unlimited liability: partners(3) Joint and several liability: serious consequence(4) Maximum partners: 203.3 Disadvantage(1) Disagreement leads to stalemates(2) Dishonesty or incompetence of one partner leads to heavy losses suffered by fellow partners(3) Time consuming in the aspects of major decisions3.4 Does partnership have separate personality?Semi-legal person?(1) Firms creditors call against firm assets first(2) Deceased partners personal creditors have first call against personal assets of his estate(3) Partnership may hold real property(3) Own name: may sue and be sued by such name(4) Accounting perspective: separate entity with its own assets, liabilities and financial statements3.3.5 Limited partnership(1) Limited partners: passive role in firm management(2) Unlimited partners: active role in management(3) Legal person status: UK4 Non profit-making organization(1) Unincorporated associations: tennis club, no separate personality; trade unions: legal person(2) Government department: DTI, FCO, legal person(3) Local authorities like local council: legal person, (4) Quango(quasi-autonomous, non-governmental organizations): further education colleges, health authorities trust, training and enterprise council, local police authorities(5) Charities: if registered as company, usually limited by guarantee; else, trustees assume unlimited liability5 Classification of company5.1 Public companies and private companies(1) Public companies: broadly held company, 1%(2) Private companies: closely held companies,99%l Shares transfer is restricted in some mannerl Maximum shareholders: 50l Invitation to the public to buy shares is prohibited5.2 Limited and unlimited companies(1) Limited company: 95%l Limited by shares: 93%, vast majority, owners pay any unpaid shares. If they are paid in full, no more liability.l Limited by guarantee: 2%, owners pay the agreed amount in the event of liquidation(2) Unlimited company: 4%l Public company may not register as unlimited companyl Must not use “limited, “Ltd”l Legal personalityl Unlimited liabilityl No publicity requirementPublic companiesPrivate companiesMinimum:2 membersMinimum: 1 memberEnd with PLC,End with Ltd, excluding UC50000alloted, 1/4 paid upNo share capital limitQuoted on Stock ExchangeCan not be quotedMinimum director:2Minimum director:1Shares must be paid in cashShares can be given away6 Significance of separate corporate existence6.1 Case study (1) Salomon V Salomon & Co Ltd(1897)Liquidation: remaining assets 6000Salomon took all the remaining assets.What shall the unsecured creditors do?House of Lords: No more obligation to pay.(2) Macaura V Northern Assurance Co Ltd (1925）Macaura and nominees owned all shares. Owed no debt to others. Macaura insured corporate timber in his name. Timber was destroyed by fire.Can he claim compensation?House of Lords: No. He wasnt owner of timber.(3) Tunstall v Steigmann (1962)Mrs Steigmann ran pork shop, leased her next door shop to Mrs Tunstall. She wanted to occupy the shop herself. She could do so if she intended to occupy it herself. Before lawsuit, she incorporated a company, and owned all but 2 shares.Can she end the lease?Court of appeal decision: No. It is the company instead of her wanting to occupy the premises.6.2 Features(1) Limited liability: shareholders(2) Continuous existence(3) Ownership of property(4) Contractual capacity(5) Professional management, since 1840s(6) Less loyalty: shareholders(7) Separation of ownership and management(8) Criminal liability: danwei fanzui in China7 Limitations on separate corporate existence7.1 Lifting corporate veil: prevent the abuse of limited liability7.2 Situations of lifting corporate veil(1) Formed for fraudulent purposeGMC Ltd v Horne (1933)Mr. Horne, MD of GMC. Non-competition clause in the employment contract. After termination, he solicited GMCs customer order. In order to avoid liability, he formed a company whose sole purpose was to solicit GMCs customers. GMC sued him. He claimed that the clause was not binding on the company.Court of appeal: Mr. Horne was laible. Injunction: he and the company.(2) If it can be characterized as enemy in time of warDaimler Ltd v Continental Tyre & Rubber Co Ltd (1916)Continental Tyre Co registered in UK, sued Daimler for recovering debt. German owned all but one shares of Continental Tyre Co.House of Lords: Continental Tyre Co could not sue on the debt.(3) Economic unit: groups of companiesDHN Ltd v London Borough of TH (1976)DHN had two wholly owned subsidiaries. Bronze is one, whose only asset was the premises where DHN carried on business. The second owned vehicles used by DHN. Local authority compulsorily purchased Bronzes premises, leading to the closure of DHNs Business. DHN claimed for damages. Local authority argued the matter had nothing to do with DHN.Court of appeal: Bronze and DHN could be treated as one economic enterprise.(4) Other situations at courts discretionGoodwin v Birmingham City FC(1980)Mr. Goodwin, manager of Birmingham City Football Club, five-year contract. He used his company to supply the services to the Club. The Club sacked him in year 3. He found a better job soon. His company sued the Club for full damages.Court decision: His company was only entitled to nominal damages. He and the company could be regarded as same person.8 Capacity of corporation8.1 Same capacity as a human beingMunicipal corporations, and corporation formed by memorandum of association are usually strictly restricted in their capacity.8.2 Ultra vires doctrine: abolished for third party protection教学手段与方法：课题精讲案例讨论思考题、讨论题或作业：1、Does the concept of limited liability mean that company does not have to pay their debt?2、What does perpetual existence mean?参考资料（包括辅助教材、参考书、文献等）：推荐教材：Business & Law, Financial Times Pitman Publishing, 2006.主要参考书：1.朱羿锟：中国商法（英文版），法律出版社2003年版；2.Evan Maclntyre：Business and Law，Financial Times Pitman Publishing, 2002。3. H Bohlman and M Dundas: The legal, Ethical and International Environment of Business, 清华大学出版社，2004。 英美商法 课程教案授课题目（教学章节或主题）：Choice of Organizational Forms授课类型理论课授课时间2007年3月30日第4周星期五 第3-4节教学内容（包括基本内容、重点、难点三部分）：Key issues: elements affecting the choice of business organizationDifficult issue: tax treatment of various businesses 1 Limited liability(1) Shareholder: Y(2) Shareholder of UC: N(3) Partner: N, Limited partner: Y(4) Sole trader: N2 Right to manage(1) Shareholder: N(2) Shareholder of UC: Y(3) Partner: Y, Limited partner: N(4) Sole trader: Y3 Agency(1) Shareholder: N(2) Director: Y(3) Partner: Y(4) Sole trader: Y4 Withdrawal from business(1) Partner: easier, by assignment, or expiration(2) Shareholder of PLC: easy(3) Shareholder of Co Ltd: may be subject to restriction of BOD5 Business property(1) Company property: company rather than shareholders(2) Partnership property: jointly owned by partners6 Borrowing power(1) Sole trader: difficult, solid security or guarantor(2) Partnership: difficult, solid security or guarantor(3) Company: easier,l Sharel Debenture: loan with mortgage, floating chargel Bond7 Formation(1) Sole trader: easiest(2) Partnership: easiest(3) Company: by registraion8 Governance formalities(1) Partnership: N(2) Company esp. PLC: Y, lots of mandatory requirements9 Publicity(1) Sole trader: completely private(2) Partnership: completely private(3) Company: mandatory disclosure except SMEsl Turnover of less than 2.8 millionl Assets of less than 1.4 millionl Fewer than 50 employees10 Tax(1) Sole trader: income tax, national insurance, personal allowance (2) Partner: income tax, national insurance, personal allowance(3) Company: corporation tax, capital gains tax, l Rate of corporation tax is lower than that