中国政法大学中欧学院2008-2010练习题及复试真题.doc

2010年双硕士项目欧洲法选修单元C1考试试题发布于  2010-7-21 11:33:05

单元C1： 国际贸易  Module C1: International Trade
Title of Course: International Commercial Contracts
Name of Lecturer: Prof. Jules Stuyck

1. Compare commercial agency, business format franchising and distribution agreements , with regard to the nature of the protection given to the weaker party  in respect of (a) the conclusion and (b) the termination of the agreement in the law of the European Union and some of its Member States

2. How do you appraise the following terms in a contract for the selective distribution of goods (other than cars) in the light of Article 101 TFEU?
(a) the buyer shall respect the maximum price fixed by the supplier;
(b) the buyer shall not sell to certain customers which the supplier has reserved for himself;
(c) the buyer shall not sell goods outside a given territory;
(d)  the buyer shall not sell to unauthorised dealers
(e) the buyer shall not sell goods on the internet if he does not sell the same goods in a brick and mortar outlet;
(f) the buyer shall not sell to authorised dealers active at another level of the production and distribution chain;
(g) the buyer shall not sell spare parts for repair to unauthorised dealers

Title of Course: International Sales and Principles of International Commercial Contracts
Name of Lecturer: Prof. Matthias Storme

1. What is the role of "good faith (and fair dealing)" in (an international sale under) CISG and in (a contract under) the Unidroit PICC?

2. Art. 4 UCP deals with the distinction "credits v. contracts". Explain what this means, including a short indication of the different legal relationships involved (you may restrict this to a simple case with only 1 bank involved).

Title of Course: Conflicts of Law /Private International Law
Name of Lecturer: Prof. Geert Van Calster

1. Liliana, a Polish citizen, who lives in Belgium with her French boyfriend Peter, was driving with Peter to Switzerland to spend a week-end with Peter’s friends living in Lugano. The car was Peter’s company car, leased by the firm he works for in St. Truiden, Belgium).
Liliana was driving as she is a better driver than Peter. While merging the highway traffic from a gas station in Luxembourg, Liliana reached for her freshly brewed coffee and crashed into a car which was overtaking her at a speed of 140km/h (20 km above the speed limit). As a result, everybody involved got injured and Mr. Bourgois, the French driver of the other car – with Luxembourg numberplates - , who lives in Luxembourg but spends a lot of time in France pursuing business opportunities, intends to sue Liliana for (i) damages to the car, (ii) pain and suffering caused by the accident, and (iii) the missed business opportunities in France due to his forced absence while he was recovering in hospital.
Where can Mr Bourgois sue? [5 points] and what law will that court apply to each of the 3 claims [5 points]

2. Discuss: “Neither the Brussels I, Rome I or Rome II Regulations really help harmonise European private international law, because the concepts they use are differently applied in the Member States.”

2008年双硕士项目欧洲法单元IA试题及参考答案发布于  2010-2-23 15:14:38

第一单元A：欧洲法律传统 (Module IA: European Legal Traditions)
一、试题 （Exam questions）

(I)  课程名称：宪法(Title of course: Constitutional-Law）  
Name of lecturer:  Prof. Ramaekers   (University of Maastricht)
Time of the exam:  29.Oct 2008

1. The governments in Germany and the United States are both against hunting endangered animals in their country, and they both have anti-hunting majorities in their lower chamber of parliament .By controlling the upper chamber of parliament, pro-hunting parties in each of these systems hope to be able to stop the adoption of a law prohibiting hunting. Is it hard or easy for them so succeed? in which of the two countries would it be easiest to prevent the adoption of such a law? Explain your choice, citing provisions from the German and US Constitutions where appropriate. Note that this question is about the lawmaking procedure.

2. France, Germany and Netherlands have all passed a law prohibiting the sale alcoholic drinks on Sunday. Assume a lower judge in France, a lower judge in Germany and a lower judge in Netherlands are of the opinion that such a law violates their respective Constitution. What can be the three judges do about this? Give reasons for answers, citing constitutional provisions where appropriate.

（II）课程名称：比较法(Title of course:  Comparative Law)
Name of lecturer:  Pro. Rammeloo  ( University of Maastricht)
Time of the exam:  29.Oct 2008

1. Describe the difference between ‘Comparative law’ on one hand and ‘Private International Law on the other’

2. Please explain the interest of comparative Law as a legal discipline in today’s context?

（III）课程名称：刑法(Title of course:   Criminal Law)
Name of lecturer:  Pro.Cancio  ( University of Autónoma Madrid)
Time of the exam:  29.Oct 2008

1. Line out the consequences of the mens rea (culpability) principle, explaining the differences between civil law and common law system.

2. Explain the constitutional and technical implications of the legality principle in comparison to the precedent system.

二、试题答案（Answers to Exam questions）

Title of course: Comparative law
Dr. S.F.G. Rammeloo (Maastricht University NL)

Q 1 Describe the difference between ‘Comparative Law’ on one hand and ‘Private International Law on the other’
Answer:
Contrary to Comparative Law (substantive comparison of legal subject-matters – not necessary of a private law nature - of two or more legal systems), Private International Law (or conflict of law) rules solely determines (i) jurisdiction, (ii) applicable law and (iii) recognition and enforcement of foreign judgments in a neutral manner, not offering any further information on the substance of the applicable system of law whatsoever.

Q2 Please mention at least three reasons of interest of comparative law as a legal discipline in today’s context.
Answer:
1 Building up knowledge for conflict resolving on national law level (step backwards while the focus is on domestic law)
2 Idem for cross-border relationships
3 Take away ‘national prejudices’
4 Contribute to national law reforms (cf. ‘reconstruction’ of legal system Eastern European laws after collapse Sovjet-Union)
5 Legislation: contribute to approximation, harmonization, or even unification of laws (cf. on both international and communautary EC law level): cf. articles 61 and 65 ECT (‘first pillar’)
6 Courts: cf. ECJ (‘principles underlying the laws of all EC Member States’)
7 Quasi-legislation: Restatement of the Law (US), development of ‘principles’ (cf. European Contract Principles’; ‘Principles on Parental Authority’ developed by the Commission on European Family Law)
8 Non-state legislation: lex mercatoria
9 Reduction for business world of legal ‘costs’ (Law & Economics)
10 Enhancing education for academics and practitioners (cf. integrative approach ‘Maastricht University)

2008年双硕士项目欧洲法单元IB 考试试题发布于  2010-2-23 15:16:15
Introduction to Chinese Legal System
MODULE I B
December 5, 2008

Examination Questions:

1.      Firstly, describe the role and functions of judicial interpretation in Chinese legal system; secondly, comment on its positive and negative aspects in practice if there are any.

2.      Chinese legal system has been developing very fast, particularly in the area of market formation. Comment on the role and function of the legal system played in the market formation. Give your suggestions on how to further promote the rule of law in this field.

Instruction:

A.   It is a take-home exam;
B.   Choose one question from the following two to write an essay;
C.   Type your answer with fond 12 and double space; it should be no more than 8,000 words;
D.   Your essay should be an independent work.

2008年双硕士项目欧洲法第三单元试题及参考答案发布于  2010-2-23 15:15:40

第三单元：欧盟法律与政治简介（Module III：Introduction to Law and Politics of the European Union）
一、试题（Exam questions）

(I) 课程名称：欧盟法的法律基础
(Title of course: Legal Foundations of European Union Law）  
Name of lecturer:  Prof. Hatje (University of Hamburg )
Time of the exam:  24.Nov 2008

1.       Please explain the elements of "Supranationality" of the EU/EC.

2.       The EC-Law has supremacy over domestic law. Please explain the reasons and describe the limits.

（II）课程名称：欧洲政治体系
(Title of course: European Political System）  
Name of lecturer:  Prof. Navarro (University Autónoma of Madrid)
Time of the exam:  24.Nov 2008
Choose two questions Among the four below:
1. What does it mean to say Germany had a stable "two-and-a-half" party system?
2. Why did the French Fourth Republic collapse in 1958?
3.       What in your opinion are the main differences between Western European countries and the so-called "Central and Eastern" European countries?

4. How significant have key leaders been in the European integration process?

（III） 课程名称：欧盟政治与经济层面
(Title of course:Political and Economic Dimension of the EU）
Name of lecturer:  Prof. Dr. Thomas Eger (University of Hamburg)
Time of the exam:  24.Nov 2008

1. a) What is the difference between primary and secondary law?

b) Which are the main institutions involved in the EU’s decision making process, i. e. in the production of secondary law?

c) Assume a committee consists of three members, Huey, Dewey, and Louie, where Huey has 15, Dewey 25, and Louie 26 votes. At least 41 votes are required for a proposal to be accepted. Calculate the Shapley-Shubik-index and the Banzhaf-index for all members of the committee.

2. a) What do you understand by a customs union?

b) Explain that the establishment of a customs union leads to trade creation and trade diversion.

c) What is the importance of the “Cassis-principle” for European integration?

(IV) 课程名称：欧盟法的法律基础
(Title of course: Legal Foundations of European Union Law） 
Name of lecturer:  Prof. Malathouni (Maastricht University )
Time of the exam:  24.Nov 2008

1. The European Court of Justice (ECJ) has played a pivotal role in enhancing the protection of individuals in the Community legal order and in this way has ensured the uniform application of Community law in the Member States. Please support this statement by providing two examples indicating how the ECJ has made use of its “lawmaking ability”. What are the conditions of these rules and in which case law were these principles established and developed?
2. What is the function of a legal basis in Community legislation, how is it chosen and is there a possibility to employ multiple legal bases in the same piece of legislation?

二、试题答案（Answers to Exam questions）

Title of course:Legal Foundations of European Union Law
Prof. Malathouni (Maastricht University)
Q1The European Court of Justice (ECJ) has played a pivotal role in enhancing the protection of individuals in the Community legal order and in this way has ensured the uniform application of Community law in the Member States. Please support this statement by providing two examples indicating how the ECJ has made use of its “lawmaking ability”. What are the conditions of these rules and in which case law were these principles established and developed?
Answer:
Van Gend en Loos introduced the notion of a sui generis legal order for the Community legal order , where not only states but also individuals, enjoy right and duties.
a.       dir.effect:
-  definition= ability of individuals to rely before their national courts on rights that Community law has conferred upon them
-  conditions: expiry of implementation period and unduly or untimely implementation by MS, clear, precise and unconditional, lack of horizontal dir. effect
-  case law: Van Gend en Loos, Defrenne, Van Dyun
b.       indirect effect: evolved mainly due to lack of horizontal dir. effect of dir.
-  definition: obligation of MS to interpret national law in conformity with Community Law.
-  conditions: expiry of implementation period, limits: contra legem interpretation and respect for principle of legal certainty(criminal law).
-  case law: Von Colson, Marleasing
c.        state liability:
-  definition : possibility for individuals to hold a MS liable for breaches of Community law
-  conditions : rule of law must confer rights on individuals, sufficiently serious breach and causal link btw damage and breach
-  case law: Brasserie du Pecheur, Factortame, Francovich

Q2 What is the function of a legal basis in Community legislation, how is it chosen and is there a possibility to employ multiple legal bases in the same piece of legislation?
Answer:
Legal basis definition: a treaty provision delineating the competence of the Community institutions to act in this field. It is a further expression of the principle of conferred powers or of institutional balance (art. 5 and 7 TEC). It can support a ground for annulment. It takes the following form: institutions involved, legislation-making and decision-making procedures, subject matter.
Choice of legal basis: based on objective factors amenable to judicial review such as content and aim of the measure. One looks for the predominant purpose and chooses a single legal basis. Only by way of exception can a multiple legal basis be chosen, if the aims of the measure are inextricably linked. Even in this case however, one must make sure that the various legal bases to be used entail compatible legislative procedures. In case the later are not compatible, the provision with the larger input for the EP has to be chosen, namely art. 251 TEC, since the EP enjoys a veto right.

2008年双硕士项目欧洲法选修单元D2考试试题发布于  2010-2-23 15:26:05

单元D2: 公司法   Module D2: Company Law
Title of Course: Insolvency Law
Lecturer: Prof. Stephan Rammeloo
Note: The exam is not an open book exam, and the students are only allowed to bring legislation UNCITRAL and EC Regulations with them.

Question:
Two businessmen from the Netherlands function as company officers of a Private Limited company which has been duly set up and incorporated in England. This company exclusively conducts business in the Netherlands and, via a branch, in Belgium. As a matter of fact the two officers never even went to England: their company was set up on line, via the website of the UK Companies House (the registry).
Due to the financial crisis, the turnover of the company is rapidly decreasing. Dutch as well as Belgian Creditors of the company start complaining about non-payment. September 2009 some of the creditors start court proceedings in order to let the company go broke (insolvency declaration).

Where should insolvency proceedings be held? Explain your view.

Title of Course: Liquidation Procedures
Lecturer: Prof. Christoph Thole
Note: closed-book exam

Question:
Describe the role of the liquidator - what are his duties and his functions; how does this differ from a