國際商法課件( English )(1)

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1、Chapter One Introduction to International Business Law I. Definition of International Business Law II. Sources of International Business Law III. History of International Business Law IV. Characteristics and Principles of International Business Law V. Major Legal Systems of the World Key Terms and I

2、mportant Legal English Usages 1. norms: 標(biāo)準(zhǔn)，規(guī)范，法則，規(guī)則，準(zhǔn)則。該詞一般指組織或慣例中的準(zhǔn)則或規(guī)則，不指立法機(jī)關(guān)所制定的法律。 2. law: 法律，法令。該詞較常用，主要指由最高當(dāng)局制定、由立法機(jī)構(gòu)通過或由習(xí)慣認(rèn)可而由法院執(zhí)行的法律。 3. code: 法典、法規(guī)。著重指集體的法規(guī)，如civil code, criminal code. 4. regulation: 條例，規(guī)則，規(guī)章。主要表示用以指導(dǎo)、管理或控制某系統(tǒng)或某組織的規(guī)則或原則。 5. rules: 規(guī)則，規(guī)章。指團(tuán)體的規(guī)章、條例或比賽規(guī)則，常與regulation互換使用。 6. p

3、rovision: 規(guī)定，規(guī)范。指具體部門所制定的規(guī)定。 7.procedures: 程序，辦法。主要指具體部門或行業(yè)為實(shí)施某法律制訂的具體步驟。 8.institutions: 制度，法律，法令；公共機(jī)構(gòu)。該詞主要表示制度、公共機(jī)構(gòu)或訴訟的提起。 9.rule of law: 法治。 10. legal doctrines: 法律理論。 11.legal validity: 法律效力。 I. Definition of International Law 1. Definition International business law, also called international c

4、ommercial law, refers to the body of legal rules and norms that regulates international trade and international business organizations. 2. The meaning of “International” A commercial transaction is international if: (1) the parties have their places of business in different States or Countries; (2)

5、the parties have their nationalities from different countries; (3) the commercial activities are performed in a State or District outside the Country or Countries of one or more parties; (4) the object of the commercial relationship is located in a State or District outside the Country or Countries

6、of one or more parties. 3. The meaning of “commercial” II. Sources of International Business Law 1. International Treaties and Conventions A treaty may also be known as agreement, protocol, covenant, convention, exchange of letters, accord, exchange of notes, memorandum of understanding, etc. Treati

7、es are binding agreements between two or more states, and conventions are legally binding agreements sponsored by international organizations, such as the United Nations. Main Treaties or Conventions in International Business Law Convention on Agency in the International Sale of Goods（1983年國際貨物銷售代理公

8、約） United Nations Convention on Contracts of International Sale of Goods, CISG（1980年聯(lián)合國國際貨物買賣合同公約 Hague Rules（海牙規(guī)則） Visby Rules （維斯比規(guī)則） Hamburg Rules （漢堡規(guī)則） Convention on the Law Applicable to Products Liability （1977年產(chǎn)品責(zé)任法律適用公約） Paris Convention on the Protection of Industrial Property （1883年保護(hù)工業(yè)產(chǎn)權(quán)

9、巴黎公約） 2. International trade Custom and Usage International trade Custom and usage means the general rules and practices in international trade activities that have become generally adopted through unvarying habit and common use. Three Conditions of International trade Custom and usage (1) It has de

10、terminate business contents; (2) It has become unvarying habit and common use in international business transactions; (3) Its the general rule that recognized by most countries. Customs and Usages in International Business Law Incoterms 2000（2000年國際貿(mào)易術(shù)語解釋通則） Warsaw-Oxford Rules 1932（1932年華沙-牛津規(guī)則） Re

11、vised American Foreign Trade Definitions 1941（1941年美國對(duì)外貿(mào)易定義修正本） UCP600（2007年跟單信用證統(tǒng)一慣例） 3. National Business Laws III. History of International Business Law 1. Ancient Roman Law stage（古羅馬法階段） 2. Jus Mercatorum stage （商人習(xí)慣法階段） 3. Nationalized stage（商法本國化階段） 4. The Development and Tendency of Modern In

12、ternational Business Law On the one hand, after the Second World War the rapid development of the world economy made the contact of each country more frequently. This made it necessary that a set of uniform international law regulating the relationship of international economy and trade should be ma

13、de. On the other hand, during the communication of the countries, people formed some trade practice and customs which were commonly obeyed. By the end of 19th C and at the beginning of 20th C international business law appears. Entering 21st C international business law will meet a greater developme

14、nt. Because its law and rules will be more globalized, uniform and diversified. IV. Characteristics and Principles of International Business Law 1. Characteristics (1) International law has its own adjusting object. (2) The adjusting method of international law is direct adjusting method. 2. Princip

15、les (1) Bona fides ( Principle of good faith ). (2) Principle of autonomy of will of the parties. (3) Principle of fairness. (4) Principle of facilitating transaction. (5) Principle of recognition of international commercial customs and practices. V. Major Legal Systems of the World 1. Common-law Sy

16、stem The common law system is also called English Law System, or Anglo-American Law System. Common law systems are based largely on case law, i.e., on court decisions. Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals, rather than

17、 through legislative statutes or executive action. In common-law system countries, judges could change laws and make new laws. Case law is still important in these countries. Common law countries have kept the basic feature of the English legal system, which is the power of judges to make laws. 2. C

18、ivil-Law System Civil Law, also called Continental Law or Romano-Germanic Law, is the predominant system of law in the world. Civil-law systems are based mainly on statutes ( legislative acts ). The majority of civil-law countries have assembled their statutes into one or more carefully organized co

19、llections called codes. It is sometimes said that there are two branches of civil law: French and German. Two other countries enacted civil codes that have been adopted elsewhere. The Swiss Civil Code became the Turkish Civil Code in 1926 when it was adopted by Turkey; the Chilean Civil Code is the

20、model for other South American Countries. Now many countries have patterned their legal systems after both civil law and common law. 3. Comparison Between the two Legal Systems In civil law, the main principles and rules are contained in codes and statutes, while in common law. Civil law is based on

21、 the theory of separation of powers, whereby the role of legislator is to legislate, while the courts should apply the law. In common law the courts are given the main task in creating the law. Differences between the two legal systems 1) The theoretical basis of civil law is positive law, while com

22、mon laws is natural law. 2) For the status of law, civil law is independent of government, but common law is superior to government. 3) To the base of legal rules, civil law is based on general principles, while common law is based on specific circumstances. 4) For the scope of law, civil law is mai

23、nly private law, yet common law includes private law and public law. 5) The basic source of civil law is codes, but the basic source of common law is case law. 6) Civil law is most influenced by legislators, while common law is most influenced by judges. 7) For the application of law, in civil-law c

24、ountries deductive means is widely applied, while in common-law countries, inductive means is applied. 8) For the suing procedural, in civil-law countries its inquisitorial, but in common-law countries its adversarial. 9) In civil-law countries the fact finder is judge, but in common-law countries t

25、he fact finder is jury. 10) For the use of case law as precedents, in civil-law countries its respected, but in common-law countries its required. 11) The constitutional review of civil law is by special agency or category of courts, while the constitutional review of common law is by regular courts

26、. 12) For the review of government agencies, in civil-law countries its special agency or category of courts, while in common-law countries its regular courts. 4. Assimilation Tendency of the Two Systems Nowadays there is obviously an assimilation tendency between the two legal systems. On the one h

27、and, in civil law countries, case law and precedents are given more and more respect. On the other hand, there are more and more written laws and regulations in common law countries. Exercises: 1. Whats the definition of international business law? And what are the sources of it? 2. Tell the differe

28、nces between civil law and common law. 3. What do you think of the developing tendency of international business law and the two major legal systems of the world in future? Chapter Two Law of Business Organizations I. Introduction II. Partnership Law III. Law of Corporations IV. Foreign Investment E

29、nterprises in China Key Terms Sole proprietorship: 個(gè)人獨(dú)資企業(yè) Partnership: 合伙企業(yè) Limited partnership: 有限合伙 Limited liability partnership: 有限責(zé)任合伙 Incorporated company: 股份有限公司 No-liability company: 無限責(zé)任公司 Joint venture: 合資企業(yè) Legal Person: 法人 Memorandum of association/articles of incorporation: 公司章程 By-laws

30、: 附則，內(nèi)部細(xì)則 Board of directors: 董事會(huì) Board of shareholders: 股東會(huì) Debt security: 債券 Force majeure: 不可抗力 Insolvent liquidation: 破產(chǎn)清算 Jurisdiction: 司法權(quán)，裁判權(quán)，管轄權(quán) I. Introduction Business organization, also called business enterprise, refers to the economic organization that pursues management activities with

31、 its own name with certain scale. There are two kinds of meaning with international business organization: one is the organization pursuing international business activities; and the other is forms of international business organizations. If people want to commence a business, therere a number of fa

32、ctors have to be considered, including： 1) The purpose of the business. 2) Its duration. 3) The cost. 4) The taxation. 5) The setting up procedure. 6) The type of assets required. 7) Who should be entitled to participate in income distributions. 8) Who should be entitled to participate in capital di

33、stributions. 9) Whether the members interest should be transferable. 10) The region of the business organization. 11) The function of the member of the business organization. II. Partnership Law 1. Definition and Nature of Partnership Partnership is the relation which subsists between persons carryi

34、ng on a business in common with view of profit. The requirements of a partnership are: two or more persons; carrying out a business; as co-owners; for profits. 2. Advantages and Disadvantages of a Partnership The advantages of a partnership can be summarized as below: (1) Informality and inexpensive

35、ness in setting up. (2) Flexibility. (3) Tax. The disadvantages of a partnership are as below: (1) Liability. (2) Transfer of interest is not as easy as the transfer of share in the company. (3) Unanimous decisions. (4) Agency. 3. Important preliminaries (1) Formalities/procedure 1) A partnership ag

36、reement lasting for more than one year must be evidenced in writing. 2) Limitations on a partnership. 3) Anti-discrimination and equal opportunity legislation apply to partnership. (2) Partnership Contract Partnership contract is an agreement between partners concerning to the firm business. The fol

37、lowing contents are often included in a partnership contract: 1) The name of the partnership and partners, and the address of them. 2) The nature of the partnership and operation scope of it. 3) The duration. 4) Method and number of capital contributing. 5) Profit distribution and loss taken. 6) Man

38、agement. 7) Incoming, outgoing and dissolution. 8) Liability for breach of the contract. 9) Other content. (3) Professional Restrictions (4) Partner by Estoppel Two persons may not be partners, yet in the eyes of a third person they may appear to be partners. If the third person deals with one of th

39、e apparent partners, he may be harmed and seek to recover damages from both of the apparent partners. For example, David thinks that Wilson, a wealthy person, is a partner of Porter, a poor person. David decides to do business with Porter. If Porter does not perform as agreed, and David can prove th

40、at Wilson misled him to believe that Wilson and Porter were partners, he may sue Wilson for damages suffered when Porter failed to perform as agreed. 4. Rights of a Partner (1) Management of the Partnership (2) Right to Share in the Profits and Surplus (3) Right to Inspect Related Materials (4) Prop

41、erty Rights of a Partner (5) Right to Gain Compensation 5. Duties and Liabilities of a Partner (1) Duties 1) Fiduciary duty. This kind of duty includes each partners following activities: a. Refraining from business in competition with the partnership, engaging in self-dealing, or usurping partnersh

42、ip opportunities unless copartners consent. b. Holding the duties of loyalty and care. c. Dealing with copartners in good faith. 2) Duty of partners to render information. (2) Liabilities 1) Liabilities of partners in contract and to the Third Party a. The actions that each partner participating in

43、the partnership affairs takes will bind the partnership and other partners. b. The right limit to certain partner cannot resist the third party. c. The tortuous act one partner performs when participating in the management, to which the liability will be undertaken by the partnership. d. The debts a

44、fter a new partner being admitted as the partner of the partnership, the new partner thus will be liable for it. But before the new partner is admitted as the partner, there are three kinds of conditions: the new partner will take joint liability with other partners, such as in France and in Japan;

45、the new partner will not take any liability, such as in England; the new partner will be liable for the debt, except if the debt is only paid with the property of the partnership, such as in the US. e. To the partner that has left the partnership, if the debt incurred before the partners departure,

46、then the left partner should be liable for it. 6. Partnership Property The relationship of the partnership property includes internal property relationship between the partners and the external property relationship. It includes the following four aspects: (1) Unified management and use of the partn

47、ership property (2) The accumulative property of the partnership should be possessed by all the partners. (3) Surplus distribution and performance of debt The surplus gained from the management of the partnership belongs to all the partners. Partners can distribute the surplus according to the follo

48、wing rules: 1) If there are distribution provisions in the agreement among the partners, they can distribute the surplus under it. 2) If there isnt distribution provision in the agreement, the partners can distribute the surplus according to the regulation of law. For example, partners will distribu

49、te the surplus equally regardless of the number and kind of their financial contribution in Germany. 3) Partners distribute surplus and share losses according their financial contribution specified in the agreement. (4) Disposition of the property after the termination of the partnership If theres s

50、till surplus after the partnership ends up, all the partners have rights to distribute it. They can distribute it according to the predetermined proportion provided in the agreement or according to their financial contribution. 7. Dissolution Dissolution is the ending or the breaking up of a partner

51、ship. It is distinct from the termination of a partnership and the “ winding up ” of partnership business. Winding up takes place after dissolution. A partnership may be dissolved as follows: (1) By retirement of a partner where the firm is of no fixed duration. (2) By completion of the agreed perio

52、d or venture. (3) By death or bankruptcy. (4) By unlawfully carrying out the business. (5) By order of a court. 8. Winding Up Winding up refers to the procedure followed by distributing or liquidating any remaining partnership assets after dissolution. Generally, creditors are paid first. Then the c

53、apital contribution is returned to the partners. After this if there are excess funds the liquidator will distribute them in proportion to their respective shares in the profits. 9. Limited Partnership A limited partnership is a form of partnership similar to a general partnership, except for one or

54、 more general partners, and there are one or more limited partners. A limited partnership has the following characteristics: (1) The number scope of a limited partnership is from 2 to 50 partners, and there is at least one general partner. (2) The general partners have management control, representi

55、ng the partnership and have joint and several liabilities for the debts of it. While the limited partners cannot participate in the management and control of the partnerships business, their liability for the debts of the partnership is the capital contributions to the partnership. (3) As a whole a

56、limited partnership should have unlimited liabilities for its debts, because theres at least one general partner. (4) A limited partner can contribute money, material property, intellectual property rights, land-use right, and so on to the partnership, but he or she cannot contribute labor to it. (5

57、) The death or bankruptcy of a limited partner cannot certainly affect the partnerships existence. (6) A limited partner and a general partner can transfer to each other under certain condition. 10. Limited Liability Partnership A limited liability partnership is made up of two or more than two part

58、ners, approved and registered by the competent authority, and it is liable for its debts with the partnership property. Each partner has unlimited liabilities for his own misconduct, and has limited liabilities for other partners reckless conduct, but the extent of the liability is his profit in the

59、 partnership. A limited partnership has elements of partnerships and corporations, but unlike shareholders, the partners have the right to manage the business directly. Comparing it with the general partnership, the essential differences are: (1) Scope of a partners liability shield. (2) Annual fili

60、ng requirement. Case Study Three registered accountants Zhang, Wang and Li set up a public accounting firm jointly with the name Special General Partnership, supplying the services of auditing and certification of registered capital. During the auditing affairs in 2008, there happened the following

61、matters: 1) When Zhang was auditing A Public Companys accounting report, he left out part of the sales revenues with gross negligence. The court held that the public accounting firm should be responsible for the loss of A. But Zhang thought that he didnt do this on purpose, thus all the partners sho

62、uld take joint liability for the loss. 2) When Wang was certificating the registered capital of B company, he made a mistake with negligence, and thus led to some economic losses of the creditor of B company. The court held that Wangs negligence did not belong to gross negligence. Answer the followi

63、ng questions: (1) Was Zhangs allegation right? Why? (2) What should the partners deal with the losses caused by Wang? Please present your reasons. Answers (1) Zhangs allegation was not right. According to the partnership law, when one or more of the partners action leads to some debts of the partner

64、ship deliberately or with gross negligence, they should take unlimited liability or unlimited joint liability, and other partners take limited liability in accordance with their profit proportion in the partnership. In this case, Zhangs action was with gross negligence, so he would take unlimited li

65、ability, and other partners took limited liability. (2) To the losses caused by Wang, all the partners should take unlimited joint liabilities. According to the partnership law, when one or more of the partners action leads to some debts of the partnership not deliberately or not with gross negligence, all the partners should take unlimited joint liabilities. In this case, Wangs action did not belong to gross negligence, so all the partners should take unlimited liabilities.