国际商法期末复习重点英文版完整版.docx

1、国际商法期末复习重点英文版完整版 HUA system office room 【HUA16H-TTMS2A-HUAS8Q8-HUAH1688】国际商法期末复习重点英文版IBL is the body of rules and norms that regulates international business trade and international business organizations.Sources of IBLWhat does it mean by source of lawNational lawInternational treaties and conventi

2、onsTrade customs and usagesInternational model lawCommon law systemCommon law is the law as developed and pronounced by the courts in deciding cases;Competent courtThe reasoning of an adjudicationPrecedent Civil law system Civil law is the codified law which is made by legislature to regulate specif

3、ic relationships;1. Roman law2. Made law3.Code and statutedefinition of partnershipDefined as a Profit-making economic organization which is Established of a partnership agreement, Make a Joint capital contributions, conduct business jointly,Share incomes and risks and bear unlimited joint and sever

4、al liabilities for debts of the partnership enterprise.特点：Profit-making economic organization;Establishment of a partnership agreement;Joint capital contribution;Sharing of incomes and risks;Bearing of unlimited joint and several liabilities for debtsCreation of a partnership:an association of two o

5、f more personscarrying on a business co-ownershipfor profitintent(目的)partnership by estoppelLimited liability partnership有限责任合伙的责任承担: In a limited liability partnership, some partners have limited liability,some partners have unlimited liability.General partnership普通合伙的责任承担:Bearing of unlimited join

6、t and several liabilities for debts.出资方式：Capital contribution:in cash; tangible goods; land or land use rights; intellectual property; or other proprietary rights; or in the form of labor service if it is agreed by all of the partners;partners rights and duties：A partner has the right of compensatio

7、n（补偿） from the partnership（The amount of compensation is decided by how the partners agreed in the partnership agreement）A partner has the right of sharing profit from the partnershipPartners owe a duty to devote full time and best efforts to the affairs of the partnership;Self-interest is prohibite

8、d;Secret profits in dealing with the partnership is prohibited;Partners owes a duty to disclose all information and facts from a third party to other partners;Concealment of information and facts is prohibited;That partners work hand in glove with (in collusion with) others for selfish purpose is pr

9、ohibited;Partners have a duty to account for any expenditures they make of the partnership funds;Partners have the duty to be joined as plaintiffs or defendants in legal suits合伙企业的管理：co-managementDissolution of the partnership means that the economic organization ceases to be associated as an entity

10、 to carry on a business;1.Non-wrongful dissolution2.Wrongful dissolution3.The death or bankruptcy of any partner automatically dissolves the partnership;4.A court order or decree dissolves a partnership;Winding up:liquidation of the assets of the business of the partnership after dissolution happens

11、;Continuation of the partnership by the remaining partners;Completion of work by the partnership before dissolution;Sharing of profits, bearing of debts, returning of assets;Definition of corporation:A corporation is a form of an economic organization in which the shareholders make investment, elect

12、 management and take limited liability for the debts of the corporation.特征：1.Independent legal status;2.Creation must be permitted by government;3.Management is accomplished through the election of the shareholders;4.The shareholders take limited liability;5.The ownership interest of the corporation

13、 is freely transferable;6.Double taxation;legal status:A corporation is a legal person and a legal entity independent of its owners (shareholders) and its managers (officers and the board of directors). Its life is unaffected by the retirement or death of its shareholders, officers, and directors.“P

14、iercing the corporation veil” theory Means to prevent the companys independent personality abuse and protect the interests of the creditors and social public interests, the specific legal relationship of specific facts, denied that the company and its shareholders behind the independent personality

15、and limited liability of shareholders, shall be ordered to the shareholder of the company (including natural person shareholders and legal person shareholders) to the company creditors or directly responsible for public interests, to achieve fairness and justice of the requirements and set up a kind

16、 of legal action.滥用权力的表现1.Separate legal personality is capable of abuse by shareholders to evade legal obligations;2.Domination of the corporation by shareholders;3.Looting of corporation assets;Management of corporations：Management agencies；Board of directors;officers of the corporation; board of

17、supervisors;Management of a corporation is elected by the shareholders;Termination of corporation:Voluntary termination:Maturity of pre-agreed period; Completion of pre-agreed project;Agreement of the shareholders to terminate Involuntary termination：Wrongful trading;Unable to pay its debts; Busines

18、s of the corporation is not commenced within;Tax evasion;Court resolution;Shareholders rights :shareholders meetingshareholders election of directorsfundamental corporate changesshareholders inspection and information rightsdistribution to shareholdersShareholders lawsuitShareholders liabilities: Sh

19、areholders should be liable for short distribution and illegal distributionIf the shareholders abuse the corporate personality to evade legal obligations, they are liable for the debts of the corporationAn agency is defined as a fiduciary relationship that results when one person,the principal,conse

20、nts that another person,the agent, shall act on behalf of the principal.Ostensible agency表见代理：in some situations,an agents powers are expanded neither by agreement with the principal nor by custom or emergency. Under the doctrine of apparent authority of ostensible authority, authority may be create

21、d or expanded when the principal causes third parties to reasonably believe the agent has authority. Express authority明示授权employment contract; resolution of the board of directors; advisory memorandum; power of attorney;Implied authority默示授权on the basis of express authority; in the customary fashion

22、; emergencies; apparent authority and estoppel；secret limitations;Ratification追认：an agent exceeds the limited authority granted; a non-agent purported to act as agent;Unauthorized contract：1)implied warranty of authority-whether the third party knew that the agent had no authority at the conclusion

23、of the contract; 2)non-existent principal;Termination of an agencyAct of the parties-accomplishment of contract purpose/occurrence of events; lapse of time; mutual agreement; unilateral termination;Operation of law-incapacity, bankruptcy, death; illegality; impracticality.Sellers obligations:1.Deliv

24、ery of the Goods 2.The turning over of documents 3.The sellers assurance of the quality of the goods 4.The sellers assurance of ownership of the goods 5.The sellers assurance of ownership of the goods Exceptions -The buyer knew or could not have been unaware of the charge or encumbrance upon the goo

25、ds;The sellers compliance with technical drawings, designs, formulas or other specifications furnished by the buyer;Buyers obligations :Payment of price;Taking delivery.Buyers remediesCompelling of specific performance-the buyer had not resorted to another remedy; the nonconformity constituted a fun

26、damental breach; timely notice-giving of the nonconformity; timely request of specific performance.Avoidance-the sellers breach of contract constitutes a fundamental breach; the seller rejects to perform within the nachfrist notice by the buyerPrice reduction-the buyer reduces a proportionate part o

27、f the purchase price in order to offset the shortage or to reflect the reduced value of the nonconforming goods.Refusing early delivery and excess quantitySellers remedies1. to compel specific performance;2. to avoid the contract for a fundamental breach or failure to cure a defect;3. to obtain miss

28、ing specificationsRemedies available to both buyers and sellers1. suspension of performance;2. avoidance in anticipation of a fundamental breach;3. avoidance of an installment contract;4. avoidance;5. damages;Bill of ladingA bill of lading is a contract between a carrier (seller, buyer or their agen

29、t) and an ocean carrier for the carriage of goods.Characteristics of B/L 1.As a certificate of receipt:as prima facie evidence between the shipper and the carrier,if B/L is not transferred; as final evidence between the carrier and the transferee of B/L; 2. As an evidence of the carriage contract be

30、tween the carrier and the shipper; 3.As a document of title:the carrier delivers the goods against the original B/L;Classifications of B/L提单的分类Loaded B/L;Named B/L;To the order B/L;Blank B/L; Antedated B/L倒签提单-it is issued earlier than the actual shipping date;Advanced B/L预借提单-it is issued before the shipping of the goods;Clean B/L 清洁提单issued through indemnity-it is issued through indemnity to cancel the “unclean” facts of the goods;