国际商法考点整理

国际商法考点整理

国际公法概念：rules and norms regulating the relationships between states is called public international law

法律渊源概念：Legal source Definition : sources in legal sense refer to something (such as a constitution, treaty, statute, or custom )that provide authority for legislation and for judicial decisions.

母公司子公司分公司关系：

发起人Promoters are people who bring a corporation into being, the one who sign on the initial constitution of the corporation

权利义务成立过程中的责任：

The legal liability法律责任of Promoters:

➢ Liability to the other Promoters: the promoters assume joint liability each other to the total cost and debt in

incorporating process.

➢ Liability to the Corporation: Fiduciary duty to the corporation: the duties of full disclosure, good faith and absolute honesty to the corporation

➢Liability to the shareholders and creditors:

Merger

merger by amalgamation（吸收合并）

(when a corporation has another corporation amalgamated with it, it is merger by amalgamation, and the amalgamated corporation shall be dissolved)

merger by new establishment（新设合并）

(when two or more corporations merge to establish a new corporation, it is merger for new establishment, and all parties being merged shall be dissolved)

⏹ when corporations merge, the claims and debts债权债务 of

all the parties to the merger shall be succeeded to by the corporation that continues to exist after the merger or by the newly established corporation.

股权equity债权debt区别：股票债券的区别 ???

Corporation with Limited Liability

◆shareholders assume limited liability to corporation

◆stocks not issued and could not be freely transferred

◆Transfer of stocks be strictly restricted.the relationship between

shareholders is much stable)

Corporation Limited by Shares

◆the total capital divided into equal stock

◆stock be publicly issued and could be freely transferred according law CISG适用范围＝联合国国际货物销售合同适用范围

允许定约国对部分条款保留吗？

允许。 CISG empowers a contracting State to declare that it will not be bound by part Ⅱ or Ⅲ of CISG.

合同形式要求Essential elements of a valid contract

common law

1.

2.consideration

3.legal capacity

4.not for illegal purpose, not illegal activity and not contrary to public policy

the civil law:=China law

similar to the common law except for the legally sufficient consideration.

什么情况买方可以解除合同？

If a contract is concluded by one party against the other party’s true intentions through the use of fraud, coercion, or exploitation of the other party’s

unfavorable position, the injured party shall have the right to request the people’s court or an arbitr ation institution to modify or revoke it.

Where a party requests for modification, the people’s court or the arbitration institution may not revoke the contract.

英美法系和大陆法系合同有效的必备要素：

the civil law: similar to the common law except for the legally sufficient consideration.

China law:similar to the civil law

CISG:only governing the formation of a contract and the rights and

obligations of the parties, other issues are left to national laws.

什么是根本违约，后果是？

什么样的违约行为引发什么责任

风险转移条款

(1) If the seller is not bound to hand the goods over at a particular place,

the risk passes to the buyer when the goods are handed over to the first

carrier

(2)If the seller is bound to hand the goods over to a carrier at a particular

place, the risk does not pass to the buyer until the goods are handed over

to the carrier at that place.

(3) otherwise, the risk passes to the buyer when he takes over the goods

or, if he does not do so in due time, from the time when the goods are

placed at his disposal and he commits a breach of contract by failing to

take delivery.

代理法（各个代理的意思）

•大陆：委托代理、议定代理和法定代理

•英美：

1.明示代理：Express Agency

An agency that occurs when a principal and an agent expressly agree to enter into an agency agreement with each other.