2013年对外经贸大学对外经济贸易大学法学院2013年研究生国际法专业859法学专业英语考研试题考研真题试卷.doc

对外经济贸易大学2013年翻译硕士专业学位研究生入学考研初试试题考试科目：859法学专业英语（注意事项：（1）此考卷适用于报考国际法学专业的考生；（2）请将答案写在答题纸上，写在本试卷上不计分！）一、法条简析题（每题15分，合计30分；请用中文回答，答案写在答题纸上）；1.UNITED Natins Convention on Contracts of International Sales of Goods Article 6:The parties may exclude the application of this Convention or , subject to article 12, derogate from or vary the effect of any of its provisions.Article 12:Any provision of article 11, article 29 or Part II of this Convention that allows a contract of sale or its modification or termination by agreement or any offer, acceptance or other indication of intention to be made in any form other than in writing does not apply where any party has his place of business in a Contracting State which has made a declaration under article 96 of this Convention.The parties may not derogate from or vary the effect of this article.请根据联合国国际货物买卖合同公约（CISG，一下简称公约）第6条和第12条的规定，用中文回答下列问题：（1）公约为什么允许当事人排除其适用？（2）公约第6条和第12条是什么关系？（3）公约是软法（SOFT LAW）吗？请说明你的理由。2.In the antidumping Agreement of 1994 under the WTO,provisions on the determination of causal link can be found in Article 3.5,which is as follows:请用中文回答下列问题：（1） 上述协定条款为成员国反倾销调查机关设定了哪些义务？（2） WTO的1994年反倾销协定英文全称叫什么？（3） 依照1994年反倾销协定，举例说明可以排除因果关系成立的主要因素？二、名词解释（请将下列名词翻译成中文并用中文解释，合计30分）1.Ad hoc Arbitratio2.Anticipatory Breach of Contract3.INCOTERMS4.Place of Business5.Endorsement三、英翻中（共15分）1.Each party shall accord to investors of the other Party treatment no less favorable than it accords, in like circumstances, to its own investors with respect to the establishment, acquisition,expansion, management, conduct, operation, and sale or other disposition of investments in its territory.2. The Parties recognize that it is inappropriate to encourage investment by relaxing domestic health, safety or environmental measures. Accordingly, a Party should not waive or otherwise derogate from, or offer to waive or otherwise derogate from, such measures as an encouragement for the establishment, acquisition, expansion or retention in its territory of an investment of an investor. If a Party considers that another Party has offered such an encouragement, it may request consultations with the other Party and the two Parties shall consult with a view to avoiding any such encouragement.四、中翻英（共15分）（1）关贸总协定第11条 数量限制的一般取消1.任何缔约方除征收税捐或其他费用以外，不得设立或维持配额、进出口许可证或其它措施以限制或禁止其它缔约方领土的产品的输入，或向其他缔约方领土输出或销售出口产品。2.本条第1款的规定不适用于：（甲）为防止或缓和输出缔约方的粮食或其它必需品的严重缺乏而临时实施的禁止出口或限制出口；.（丙）对任何形式的农渔产品有必要实施的进口限制。五、案例分析题（共60分）（一）案例一The buyer alleges that he entered into a written offer to purchase a vacant to build a house; and that in the process of excavating for the house, a well on the property was uncapped and water was released.A fact is known to the wendor if the vendor has actual knowledge of the fact or if the vendor acted in reckless disregare as to the existence of the fact. This usage of the word “know” is the same as in an action for intentional misrepresentation based on a false statement.A fact is material if areasonable purchaser would attach importance to its existence or nonexistence in determining the choice of action in the transaction question;or if the vendor knows or has reason to know that the purchaser regards or is likely to regard the matter as important in determining the choice of action, although a reasonable purchaser would not so regard it. See 3 Restatement (Second) of Torts, Sec.538(1977).For the reasons set forth, we hold that the allegations of the complaint satate a claim upon which relief con be granted and that the motion to dismiss the complaint was properly overruled.阅读以上案例并回答下面问题：1.买方（原告）强调卖方（被告）是有经验的不动产开发和经销商并且了解其出售的不动产，其目的是什么？2.本案的争议是什么？围绕该争议，审理该案件的法院所在的威斯康星州的传统规则是什么？3.本案终审法院最后哪一方胜诉？（二）案例二 Court of Chancery of DelawareIn re CITIGROUP INC.SHAREHOLDER DERIVATIVE LITIGATION(2009)Background:Shareholders of financial services corporation brought derivative action against officers and directors,alleging that directors breachd their fiduciary duties by failing to adequately protect corporation from exposure to subprime lending market, and alldging that directors engaged in waste by approving share repurchase program and approving compensation package or retiring chief executive officer (CEO).OPINIONCHANDLER,Chancellor.This is a shareholder derivative action brought on behalf of Citigroup Ine.At the outset of a class action, the class representative applies to the court for certification of the class. The class representative must be a plaintiff who suffered each injury alleged on behalf of all the plaintiffs. Courts will certify a class only when shown that there are simply too many plaintiffs to reasonably join them all to an ordinary civil suit. Upon successful certification, the class representative must give reasonable notice to any other possible plaintiffs.IV.CONCLUSIONCitigroup has suffered staggering losers, in part ,as a result of the recent problems in the United Satates economy, particularly those in the subprime mortgage market .It is understandable that investors, and others, want to find someone to hold responsible for these losses,and it is often difficult to distinguish between a desire to blame someone and a desire to force those responsible to account for their wrongdoing. Our law, fortunately, provides guidance for precisely these situations in the form of doctrines governing the duties owed by officers and directors of Delaware corporationsFor the foregoing reasons,the motion to dismiss or stay in favor of the New York Action is denied.Defendants motion to dismiss is denied as to the claim in Count III of the Complaint ofr waste for approval of the