国际商法中胁迫的英文版讲解
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Duress
It means a threat of harm made to compel a person to do something against his or her will or judgment; especially, a wrongful threat made by one person to compel a manifestation of seeming assent by another person to a transaction without real volition.
分类
包括两种情形： 强暴胁迫和经 济胁迫 没有成文法的 规定，散见于 判例当中，而 不同法院的判 决意见和结论 不一样，目前 并没有形成较 为统一的裁判 规则 认可第三人胁 迫，不过在认 可的程度上不 一样
胁迫 的主 体是 否可 以为 第三 方
无明确规定，受认可程度低
案例分析（一）
• Mr Barton was the managing director of a company, whose main business was in property development. Its main projects were going through ‘Paradise Waters (Sales) Pty Ltd’. Barton made a deed so the company agreed to pay $140,000 to Armstrong, and buy his shares for $180,000. Mr Armstrong was the chairman of the board. Street J found Mr Armstrong had threatened to have Mr Barton killed. But the NSW Court of Appeal said Mr Barton failed to discharge the onus that the threat had caused him to make the contract.
• A party’s cancellation right is valid within one year, commencing on the date when the party knew or should have know the cause for the cancellation.
案例分析（三）
• A shipbuilding company entered into a contract by which they agreed to build a tanker for ship owners for a fixed price in United States dollars, payment to be made in five instalments. The company agreed to open a letter of credit to provide security for repayment of instalments in the event of their default in the performance of the contract. After the owners had paid the first instalment, the United States dollar was devalued by 10 per cent. upon which the company put forward a claim to an increase of 10 per cent. in the remaining instalments. The owners, asserting that there was no legal ground on which the claim could be made, paid the second and third instalments without the additional 10 per cent., but the company returned both instalments.
•
• The Privy Council advised that Mr Barton could avoid the contract for being under duress, and it did not matter that he may have agreed to the deal any way. Lord Cross, Lord Kilbrandon and Sir Garfield Barwick held that physical duress does not need to be the main reason, it must merely be one reason for entering an agreement. Lord Cross said the same rule should apply for duress as in misrepresentation, ‘that if Armstrong’s threats were ‘a’ reason for Barton’s executing the deed he is entitled to relief even though he might well have entered into the contract if Armstrong had uttered no threats to induce him to do so…’
• The owners suggested that the company should subject their claim to arbitration, but they declined to do so, and requested the owners to give them a final and decisive reply to their demand for an increase by a certain date, failing which they would terminate the contract. The owners, who at that time were negotiating a very lucrative contract for the charter of the tanker, replied that although they were under no obligation to make additional payments, they would do so "without prejudice" to their rights, and requested that the company arrange for corresponding increases in the letter of credit. The company agreed to do so in June 1973, and the owners remitted the remaining instalments, including the 10 per cent. increase, without protest. The tanker was delivered to the owners in November 1974 but it was not until July 1975 that the company knew that the owners were claiming the return of the extra 10 per cent. paid on the four instalments with interest and the matter was referred to arbitration.
Civil Law
• (a)French Civil Code Article 1112
• ＊The contract is voidable even though it was exerted by a third party. • ＊It is exerted not only against a contracting party, but also against the party’s spouse, against his or her descendants or ascendants.
• (b)German Civil Code Section 123
• The rescission of a declaration of intention rescindable may take place only within the period of one year. The period begins to run from the moment at which the duress ceases.
案例分析（二）
• A (the former chairman of a company) threatened B (the managing director) with death if he did not agree to purchase A's shares in the company.来自百度文库There was some evidence that B thought the proposed agreement was a satisfactory business arrangement both from his own point of view and that of the company. B executed a deed on behalf of the company carrying out the agreement. He sought a declaration that the deed was executed under duress and was void.
Common Law
• If a person is induced into a contract as a result of duress by the other party, the contract is voidable. • Two broad categories • (1)Physical duress • (2)Economic duress
英美法系国家 定义 指行为人对表 意人施加精神 上的压力而使 之产生恐惧， 从而意思扭曲 的情形。
大陆法系国家 指一方当事方 为了把某种合 同条件强加于 另一方，而对 其实施的人身 强制或不适当 的威胁。
中国
1998年的民法通则仅仅规定了胁迫这一名词， 却没有指出其具体内容。中国《合同法》第54 条也仅仅规定胁迫为影响合同效力的原因，却 未规定胁迫的定义。最高法院 《关于贯彻执行 〈中华人民共和国民法通则 〉若干意见》第69 条规定：以给公民及其亲友的生命健康、 荣誉、 名誉、 财产等造成损失或者给法人的荣誉、 名誉、财产等造成损害为要挟，迫使对方做出 违背真实意思表示的，可以认定为胁迫行为。 没有关于强暴胁迫，经济胁迫类似的规定
• The Privy Council held that if A's threats were "a" reason for B's executing the deed he was entitled to relief even though he might well have entered into the contract if A had uttered no threats to induce him to do so. The onus was on A to prove that the threats he made contributed nothing to B's decision to sign.
China
• If a party induced the other party to enter into a contract against its true intention by duress, the aggrieved party is entitled to petition the People’s Court or an arbitration institution for amendment or cancellation of the contract.
It means a threat of harm made to compel a person to do something against his or her will or judgment; especially, a wrongful threat made by one person to compel a manifestation of seeming assent by another person to a transaction without real volition.
分类
包括两种情形： 强暴胁迫和经 济胁迫 没有成文法的 规定，散见于 判例当中，而 不同法院的判 决意见和结论 不一样，目前 并没有形成较 为统一的裁判 规则 认可第三人胁 迫，不过在认 可的程度上不 一样
胁迫 的主 体是 否可 以为 第三 方
无明确规定，受认可程度低
案例分析（一）
• Mr Barton was the managing director of a company, whose main business was in property development. Its main projects were going through ‘Paradise Waters (Sales) Pty Ltd’. Barton made a deed so the company agreed to pay $140,000 to Armstrong, and buy his shares for $180,000. Mr Armstrong was the chairman of the board. Street J found Mr Armstrong had threatened to have Mr Barton killed. But the NSW Court of Appeal said Mr Barton failed to discharge the onus that the threat had caused him to make the contract.
• A party’s cancellation right is valid within one year, commencing on the date when the party knew or should have know the cause for the cancellation.
案例分析（三）
• A shipbuilding company entered into a contract by which they agreed to build a tanker for ship owners for a fixed price in United States dollars, payment to be made in five instalments. The company agreed to open a letter of credit to provide security for repayment of instalments in the event of their default in the performance of the contract. After the owners had paid the first instalment, the United States dollar was devalued by 10 per cent. upon which the company put forward a claim to an increase of 10 per cent. in the remaining instalments. The owners, asserting that there was no legal ground on which the claim could be made, paid the second and third instalments without the additional 10 per cent., but the company returned both instalments.
•
• The Privy Council advised that Mr Barton could avoid the contract for being under duress, and it did not matter that he may have agreed to the deal any way. Lord Cross, Lord Kilbrandon and Sir Garfield Barwick held that physical duress does not need to be the main reason, it must merely be one reason for entering an agreement. Lord Cross said the same rule should apply for duress as in misrepresentation, ‘that if Armstrong’s threats were ‘a’ reason for Barton’s executing the deed he is entitled to relief even though he might well have entered into the contract if Armstrong had uttered no threats to induce him to do so…’
• The owners suggested that the company should subject their claim to arbitration, but they declined to do so, and requested the owners to give them a final and decisive reply to their demand for an increase by a certain date, failing which they would terminate the contract. The owners, who at that time were negotiating a very lucrative contract for the charter of the tanker, replied that although they were under no obligation to make additional payments, they would do so "without prejudice" to their rights, and requested that the company arrange for corresponding increases in the letter of credit. The company agreed to do so in June 1973, and the owners remitted the remaining instalments, including the 10 per cent. increase, without protest. The tanker was delivered to the owners in November 1974 but it was not until July 1975 that the company knew that the owners were claiming the return of the extra 10 per cent. paid on the four instalments with interest and the matter was referred to arbitration.
Civil Law
• (a)French Civil Code Article 1112
• ＊The contract is voidable even though it was exerted by a third party. • ＊It is exerted not only against a contracting party, but also against the party’s spouse, against his or her descendants or ascendants.
• (b)German Civil Code Section 123
• The rescission of a declaration of intention rescindable may take place only within the period of one year. The period begins to run from the moment at which the duress ceases.
案例分析（二）
• A (the former chairman of a company) threatened B (the managing director) with death if he did not agree to purchase A's shares in the company.来自百度文库There was some evidence that B thought the proposed agreement was a satisfactory business arrangement both from his own point of view and that of the company. B executed a deed on behalf of the company carrying out the agreement. He sought a declaration that the deed was executed under duress and was void.
Common Law
• If a person is induced into a contract as a result of duress by the other party, the contract is voidable. • Two broad categories • (1)Physical duress • (2)Economic duress
英美法系国家 定义 指行为人对表 意人施加精神 上的压力而使 之产生恐惧， 从而意思扭曲 的情形。
大陆法系国家 指一方当事方 为了把某种合 同条件强加于 另一方，而对 其实施的人身 强制或不适当 的威胁。
中国
1998年的民法通则仅仅规定了胁迫这一名词， 却没有指出其具体内容。中国《合同法》第54 条也仅仅规定胁迫为影响合同效力的原因，却 未规定胁迫的定义。最高法院 《关于贯彻执行 〈中华人民共和国民法通则 〉若干意见》第69 条规定：以给公民及其亲友的生命健康、 荣誉、 名誉、 财产等造成损失或者给法人的荣誉、 名誉、财产等造成损害为要挟，迫使对方做出 违背真实意思表示的，可以认定为胁迫行为。 没有关于强暴胁迫，经济胁迫类似的规定
• The Privy Council held that if A's threats were "a" reason for B's executing the deed he was entitled to relief even though he might well have entered into the contract if A had uttered no threats to induce him to do so. The onus was on A to prove that the threats he made contributed nothing to B's decision to sign.
China
• If a party induced the other party to enter into a contract against its true intention by duress, the aggrieved party is entitled to petition the People’s Court or an arbitration institution for amendment or cancellation of the contract.