华东政法学院2000年国际法考研试题
国际公法与国际私法卷
PART ONE：PUBLIC INTERNATIONAL LAW
Ⅰ.Translate and compare briefly the following 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
Ⅱ.Answer the following questions(25%)
1.What are the reservations made by our country to the Convention on Diplomatic Relation 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 jurisdiction? (6%)
4.Is the “principle of hrman rights”one of the basic principles of international law? Give your rdasons to your answer.(6%)
Ⅲ.Describe and comment briefly on the reform of the united nations from the perspective of international law .(10%)
PART TW PRIVATE INTERNATIONAL LAW
Ⅰ。Translate into Chinese and explain briefly the following legal terms.(12%)
1.fraus omnia comunpit
2.formula of attribution
3.mandatory rules
4.lex loci re sitae
Ⅱ.Read the following statements, give a “true” if you think the statement is correct,or a “false” if you 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 applided 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 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. ( )
Ⅲ.Answer the question in detail (13%)
Explain the relationship between jurisdiction and lex causae.
Ⅳ．Case analysis：(15％)
X，a Chinese company，signed a contract with Y，n1 American company with its head office in California，to set 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 Intetional 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 secret of its technologies and brought the case before an American court in California．
Answer the following questions based on the Givil procedure Law and the Arbitration Law of the PRC，and give the reasons to support your answers：
1．Does CIETAC Shanghai Sub-Commission have jurisdiction over this case ?(5％)
2．Does the American court in California have jurisdiction over this case ?(5％)
3. In your opinion ,is it possible for the Chinese People’s Court in the Shanghai to exercise its jurisdiction over this case?(5%)
国际经济法卷
Read the following questions carefully and answer them in CHINESE.
Ⅰ.Translate and explain briefly the following terms．(15％)
1. Principle of Transparency
2.Safeguard Measures
3.EDI
4.Expropriation
5.Method of Tax Deduction
Ⅱ。Read the following carefully and give a “true”in the bracket if you think the statement is correct ,or a “false”if you think the statement is wrong.(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 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 if they are set up as an independent legal entity.( )
8.A letter of credit is a promise of absolute payment given by the issuing bank to a beneficiary.( )
9.A bill of dxchange 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 byinding rules on capitals of bank and banking operations.( )
Ⅲ. 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 October1,1999,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 regulation their transaction
4.The Arbitration law of China as effective since September 1,1995 set forth the rules of arbitral awards. Compare the major differences between the domestic arbitral awares and foreign-related arbital awards in terms of jurisdiction, especially point out the latest development in the Chinese people’s court in dealing with cases relating to the cancellation of awards.
Ⅳ．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 an 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 1evy 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 nationally of company，whether there are any conflicts between this regulation and the current civil or arbitration systems．(15％) |
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