中国政法大学中欧学院复试及面试历年真题.doc

Entrance Examination–Legal Analysis (2009) 发布于  2010-2-23 15:21:09

Entrance Exmination of CESL —Legal Analysis
for Double Master Program Applicants

by Prof. Fang Liufang

General Instructions:

(a) The only reference permitted for this examination is a standard English-Chinese dictionary, excluding any dictionary with user-added notes.

(b) Please be aware of the following:
--All responses must be given on the answer sheets provided separately;
--The duration of the exam period is 150 minutes;
--Full marks for this exam are 100 points.

(c) Read the transcript carefully. Take your time to understand the exact request and organize your thoughts before writing.

(d) Finally, all your responses must be written in English. 

Examination Tasks:

The Chinese language document attached is an unedited transcript of a judicial judgment concerning the validity of a real estate transaction in Song Zhuang, a suburb of Beijing.

1. Please write a case summary identifying the major facts, legal issues and key points of the judges’ legal opinions using no more than 1000 words. (30 points)

2.  Assume the plaintiff was aware of the fact that performance of the contract in dispute can never lead to the defendant acquiring the legal title to the house. Is there any reasonable legal ground for the plaintiff to initiate litigation challenging the validity of the contract whereby he could benefit from the correction of a legal mistake to which his contribution was at least equal to that of defendant? (50  points)

3.  Please propose an alternative solution to the dispute between the two parties. (20 points)

北京市第二中级人民法院民事判决书
(2007)二中民终字第13692号

上诉人(原审被告)李玉兰，女，1969年5月11日出生，汉族，河北省邯郸市邯山区居民，住北京市通州区宋庄镇辛店村。

委托代理人陈旭，北京市隆安律师事务所律师。

委托代理人王立则，男，1950年5月15日出生，画家，住北京市通州区宋庄镇白庙村。

被上诉人(原审原告)马海涛，男，1964年7月21日出生，汉族，北京市通州区县敬老院职工，住北京市通州区永顺镇乔庄西区14号楼142室。

委托代理人董秀梅(马海涛之妻)，1962年11月7日出生，汉族，北京市通州区县敬老院职工，住址同上。

上诉人李玉兰因一般买卖合同纠纷一案，不服北京市通州区人民法院(2007)通民初字第1031号民事判决，向本院提起上诉。本院依法组成合议庭，公开开庭进行了审理，上诉人李玉兰及其委托代理人陈旭、王立则、被上诉人马海涛之委托代理人董秀梅到庭参加了诉讼。本案现已审理终结。

2O06年l2月，马海涛与其母吴淑敏起诉至原审法院称：吴淑敏与其丈夫马万春在通州区宋庄镇辛店村有北房五间、西厢房三间。马万春于200O年去世。2002年，马海涛将北房五间、西厢房三间卖与李玉兰。因李玉兰不属于通州区宋庄镇辛店村农民，其无权使用辛店村宅基地，故起诉请求确认马海涛与李玉兰所签房屋买卖协议无效，李玉兰返还房屋，马海涛、吴淑敏同意按有关部门评估的房屋现值退还李玉兰购房价款。后吴淑敏撤回起诉。

李玉兰辩称：双方签订的房屋买卖协议是合法有效的。马海涛亦为居民户口，其亦无权使用通州区宋庄镇辛店村的宅基地，无权要求退还房屋，且马海涛的起诉超过了诉讼时效。故不同意马海涛的诉讼请求。

原审法院经审理认为，违反法律、行政法规强制性规定的合同无效。李玉兰系居民，依法不得买卖农村集体经济组织成员的住房。马海涛要求认定买卖合同无效的诉讼请求，理由正当，证据充分，应予支持。合同无效后，因该合同取得的财产，应当予以返还。马海涛应依照房产的现值对李玉兰进行补偿，房产的现值应当以评估值为准。李玉兰应当把该房产返还给马海涛。对李玉兰关于马海涛起诉超过诉讼时效的答辩意见，因合同无效属于自始无效，故其抗辩意见不予采信。综上，原审法院于2007年7月判决：一、李玉兰于本判决生效之日起九十日内将位于北京市通州区辛店村的北房三问、西厢房六间及院落腾退给马海涛;二、马海涛给付李玉兰补偿款九万三千八百零八元，于本判决生效之日起十五日内执行清。

判决后，李玉兰不服，向本院提出上诉，坚持认为其与马海涛所签房屋买卖合同有效，并据此请求撤销原判，驳回马海涛的诉讼请求。马海涛同意原审判决。

经审理查明，马海涛原系北京市通州区宋庄镇辛店村农民，于1998转为居民，现户籍地为北京市通州区永顺镇乔庄西区14号楼142号。李玉兰系城市居民，户籍地为河北省邯郸市。双方诉争之房屋原系马海涛之父马万春继承之祖遗产，1993年北京市通县土地管理局向马万春核发诉争房屋所在院落之《集体土地建设用地使用证》，确认马万春为该宅院之土地使用权人。马万春与吴淑敏系夫妻，二人共生有一子四女，分别为马海涛、马海芹、马海兰、马海伶、马海明。马万春于2000年9月去世。

2002年7月1日，马海涛与李玉兰签订《买卖房协议书》，将诉争房屋及院落以45000元的价格卖与李玉兰。《买卖房协议书》上书：“宋庄镇辛店村马海涛与李玉兰商定将正房五间、厢房三间卖给李玉兰作价4．5万元整，房屋及院落以上级下发的土地使用权证为准，房款自签字后一次性交清，双方遵守协议”。落款处除有买卖双方签字，还有中证人康文宏及代笔人郭化勤签字，并加盖北京市通州区宋庄镇辛店村民委员会印章。同日，北京市通州区宋庄镇辛店村民委员会在诉争房屋所在院落之《集体土地建设用地使用证》变更记事一栏中记载“马海涛于2 0 02年7月1日将上房五间、厢房三间出售给李玉兰使用”。

该契约签订后，李玉兰支付给马海涛房款45 000元，马海涛将房屋及《集体土地建设用地使用证》交付李玉兰。李玉兰入住后对原有房屋进行装修，并于2003年1 0月经北京市通州区宋庄镇辛店村民委员会批准新建西厢房三间。

在原审法院审理期间，马海涛同意按照房屋及添附物的现值返还，并申请对诉争房屋及添附物的现值进行评估。原审法院依法委托北京东华天业房地产评估有限公司对诉争院落内房屋及其他地上物的现值进行评估，评估结论为房屋及其他地上物在2007年4月20日的价值为93808元。

上述事实，有双方当事人陈述、户籍证明、集体土地建设用地使用证、买卖房协议书、评估报告等证据在案佐证。

本院认为，宅基地使用权是农村集体经济组织成员享有的权利，与享有者特定的身份相联系，非本集体经济组织成员无权取得或变相取得。马海涛与李玉兰所签之《买卖房协议书》的买卖标的物不仅是房屋，还包含相应的宅基地使用权。李玉兰并非通州区宋庄镇辛店村村民，且诉争院落的《集体土地建设用地使用证》至今未由原土地登记机关依法变更登记至李玉兰名下。因此，原审法院根据我国现行土地管理法律、法规、政策之规定，对于合同效力的认定是正确的。上诉人李玉兰关于合同有效之上诉请求，本院不予支持。

合同被确认无效后，因该合同取得的财产应当予以返还，不能返还或者没有必要返还的，应当折价补偿。基于上述合同无效之法律后果处理的一般原则，原审法院判决买受人李玉兰将其购买的房屋及院落返还出卖人马海涛，出卖人马海涛将价款返还买受人李玉兰并无不当。但买受人李玉兰在购买房屋后自行出资对房屋及院落进行了新建及装修，考虑到李玉兰对于房屋及院落的添附系附和于出卖人所有的原物上，无法识别与分离，即便能够分离，分离后添附部分的使用价值亦极大贬损。故原审法院判决买受人将原物及添附一并返还及给付出卖人，由出卖人将原房及添附部分的价值折价补偿买受人的处理结果亦无不当，本院亦予以维持。

考虑到出卖人在出卖时即明知其所出卖的房屋及宅基地属禁止流转范围，出卖多年后又以违法出售房屋为由主张合同无效，故出卖人应对合同无效承担主要责任。对于买受人信赖利益损失的赔偿，应当全面考虑出卖人因土地升值或拆迁、补偿所获利益，以及买受人因房屋现值和原买卖价格的差异造成损失两方面因素予以确定。但鉴于李玉兰在原审法院审理期间未就其损失提出明确的反诉主张，在二审程序中，不宜就损失赔偿问题一并处理，李玉兰可就赔偿问题另行主张。综上，依照《中华人民共和国民事诉讼法》第一百五十三条第一款第(二)项之规定，判决如下：

    一、维持北京市通州区人民法院(2007)通民初字第103l号民事判决第一项、第二项;
    二、马海涛与李玉兰于二00二年七月一日所签之《买卖房协议书》无效。
    评估费600元，由马海涛负担300元(已交纳)，由李玉兰负担300元(于本判决生效后七日内交纳)。
    一审案件受理费50元，由马海涛负担25元(已交纳)，由李玉兰负担25元(于本判决生效后七日内交纳);二审案件受理费70元，由李玉兰负担(已交纳50元，剩余20元于判决生效后七日内交纳)。
本判决为终审判决。
审判长：肖蓉蓉
审判员：张振越
代理审判员：李馨
二零零七年十二月十七日
书记员：康乐

Entrance Exmination-Legal Analysis(2010) 发布于  2010-4-12 9:18:04
Entrance Examination of CESL (2010)
Legal Analysis (for 150 minutes)
By Prof. Fang Liufang
Please read carefully two paragraphs below and answer the questions.
1. In December 1996, Mr. Xu Kai, the plaintiff concluded a labor contract with the defendant, Shanghai Bao-steel Metallurgical Construction Corporation(hereinafter referred to as Engineering Company): the defendant agrees to employ the plaintiff as its worker for an unfixed term from January 1st, 1997; the contract shall be rescinded or terminated in the case of any of the conditions for rescission or termination as stipulated by both parties; either party may rescind the contract upon the consent of the other party; the defendant can rescind the contract in case the plaintiff seriously disobeys the company’s labor disciplines and regulations; the plaintiff may rescind the contract at any time, provided that he has notified the defendant of the rescission in written form 30 days in advance and fulfilled the compensation clause and breach of contract clause as stipulated in the contract. On January 4th, 2001, the plaintiff submitted a written resignation report to the defendant. On January 8th, 2001, Yang Huaxing, the representative of defendant agreed on the resignation by signing on the report. On the same day, the plaintiff handed over work to the defendant. After that, the plaintiff did not go to work any more. On May 30th, 2001, the defendant rescinded the labor contract with the plaintiff as the latter did not go to work since he submitted the resignation report in January 2001 and did not handle the formalities for leave. On the same day, the defendant issued a Notice of Dismissal of Shanghai Employees, which indicated that: “as Xu Kai disobeyed our company’s labor disciplines, we dismissed him on May 30th, 2001.”

As a result of the negative evaluation on his personnel file, the plaintiff’s every attempt at finding a new job met with failure from May 2001 to 2005.

Mr. Xu thus determined to file a law suit against his former employer and looked for a competent lawyer.

Questions:
(1)Supposing Mr. Xu came to you for advice, what suggestions in principle would you give to him (10 points)?
(2) Based on the above mentioned facts, what damages could the plaintiff claim? (10 points)
(3)What are the legal grounds for the plaintiff to claim damages? (20 points)
(4) What legal rules might be applied in determining this case? (10 points)

2. Zhou Yaohua and 12 others met for a meal and drinks on February 25, 2008. In total the 13 people drank nine jin of Baijiu (白酒) between the hours of seven and nine p.m. When the party broke up, Zhou Yaohua was intoxicated from the alcohol consumed; out of the other twelve people, Mr. Zhang and eight others left first, Zhou Luorun (and two others) took Zhou Yaohua to his (Zhou Luorun’s) house to rest, and planned to take Zhou Yaohua back to his own house once he (Zhou Yaohhua) awoke from his drunken stupor. At three a.m. in the morning, “Zhou Luorun discovered that he could not hear Zhou Yaohua breathing, sensing that something was wrong, he asked his daughter to call the emergency services and Zhou Yaohua’s family.” After the emergency services arrived, they attempted to resuscitate Zhou Yaohua, however, because he was still under the influence of alcohol, his heart and pulse stopped, attempts at resuscitation failed and he was pronounced dead at 4.30a.m. on February 26, 2008.

Zhou Yaohua’s widow brought a suit under civil law for damages. If you were her lawyer how would you reply to the following questions:

Questions:
(1)Based on your knowledge of Chinese law, what cause of action (案由) will give the plaintiff maximum chance of success ? (5 points)
(2) Who would be the defendants in this case? (5 points)
(3) What are the legal grounds for the plaintiff’s claim? (5 points)
(4) What compensation could the plaintiff hope to receive? (10 points)
(5) If you were the defendants’ lawyer, how would you argue against the plaintiff’s claims?(25 points)

Interview Questions for Double Master Program Applicants (2009) 发布于  2010-2-23 15:20:39
Questions 1 to 10 are written by Prof. Colneric.

1. Do you think that law has contributed to China's economic success?

2. China's new labor legislation was rather controversial. Can you give reasons for this?

3. Is there a piece of Chinese legislation that might be of particular interest for developing countries?

4. What was and is the role of agricultural taxation in China?

5. What is the role of the fundamental rights enshrined in the Chinese constitution?

6. Can you explain the Hukou system?

7. If people think that their rights have been infringed what possibilities of seeking a remedy do they have in the Chinese legal system?

8. In recent years there have been many legal reforms in China. Which of them would you consider to be of particular importance?

9. Can you imagine some areas in which it is particularly difficult to enforce the law?

10. What can be done if somebody does not respect a judgment given by a Chinese court?

Questions 11 to 14 are written by Dr. Wang Jun.

11."Human flesh search engine" is a term used to describe websites where internet vigilante mobs track down and publish personal details (name, home address, workplace, phone number, etc.) of those they believe have engaged in some kind of behavior worth punishing. If you unfortunately become a victim of a "Human flesh search engine," what legal action(s) could you employ against it?

12.Cameras to monitor and catch speeders and other traffic-rule violators on highways are just beginning to spread across cities of China. One of the debates over traffic cameras is whether traffic administrative authorities should warn drivers of where cameras exist. Some people say traffic cameras should be hidden from drivers because each driver has a duty to observe traffic rules regardless of cameras. If authorities warn drivers of cameras, these people say, drivers will obey traffic rules only in the areas where cameras exist. However, critics point out that the drivers as citizens have a constitutional right to know this kind of information. What is your opinion?

13.Currently many people are calling for legal measures to limit the salaries of directors and other officials in state-owned financial corporations. Do you agree with this proposal? Why? Please analyze and forecast the effects of these kinds of measures.

14.In September 2008, Mr. Zhang was seeking a job at a bank in Sichuan province. The bank published a notice detailing the requirements of job seekers on its website, one of which was that male applicants must be taller than 1.65 meters. Mr. Zhang was just 1.61 meters. The bank refused the job application from Mr. Zhang because of his height. Now, Mr. Zhang wants to file a discrimination lawsuit against the bank. Please provide some legal advice for Mr. Zhang.

Questions 15 to 24 are written by Prof. Fang Liufang.

15.  Over the last 16 years, the regulation on fireworks has shifted from prohibition to conditional permission. Prior to 2005, fireworks were forbidden in Beijing without exception and violators were subject to detention. During this period, the use of illegal fireworks was responsible for approximately 650 personal injuries and 300 fires per year on average. In 2005, a new regulation came into effect replacing the prohibition. This new regulation permits the use of fireworks during the period of Spring Festival with the exception of certain areas designated as fireworks forbidden areas, such as gas stations, electricity conversion stations, and so on. Since that time, the average annual number of reported injuries caused by fireworks has increased to around 1000. Who benefits from the change of regulation and who pays the price? Since fireworks will definitely claim the lives of human beings, how can we justify their legalization? According to your knowledge of law, would it make sense to file a lawsuit against the producers of fireworks seeking damages for personal injury? Why have none of the victims done so?

16. Part one: According to your own observations, over the past 10 years which aspects of life in China have changed the most, which have changed little and which remain unchanged? Please give one example for each to illustrate your observations.  

Part two: Consider the following: The administrative department of a university receives regular kickbacks from a publishing company as a reward for purchasing large sums of text books. These funds are then used to update the university's computer systems, employ additional staff and replace old furniture. It is apparent that the kickbacks benefit the danwei rather than individuals of the danwei.

Is anyone committing bribery in this case? If so, is it the publishing company, the university, the administrative department of the university, or all three?

17.    In the Sun Zhigang (孙志刚) case, a young man was detained for failing to bring his temporary residence registration with him when visiting an internet cafe in Guangzhou in March 2003. Later, he was sent to a medical center for inmates where he reportedly died of a heart attack three days later. In fact, Sun was beaten to death by several other inmates. What legal changes were triggered by this case? What do you know about the Regulations on Internment and Deportation (收容遣送)?

18. In June 2003, a Mr. Zhang from An Hui province was surprised to learn that his qualification application for the provincial civil service was rejected. Previously, he had been ranked first on the provincial examination for civil servants. It later became apparent that he was rejected due to a heath condition: his blood test indicated that he was affected by the transmittable disease Hepatitis B. As far as you know, what course of action did Mr. Zhang take to challenge the decision? Was he successful in doing so? If a person with a transmittable disease were to apply for a position in a hospital, would his or her health situation be a sufficient reason for rejection? 

19. At present in China, the end result of a judicial decision is expected to achieve "a high standar