国际商法课件( English )(1).ppt

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

2、t Legal English Usages1.norms:标准，规范，法则，规则，准则。该词一般指组织或惯例中的准则或规则，不指立法机关所制定的法律。2.law:法律，法令。该词较常用，主要指由最高当局制定、由立法机构通过或由习惯认可而由法院执行的法律。3.code:法典、法规。着重指集体的法规，如civil code,criminal code.4.regulation:条例，规则，规章。主要表示用以指导、管理或控制某系统或某组织的规则或原则。5.rules:规则，规章。指团体的规章、条例或比赛规则，常与regulation互换使用。6.provision:规定，规范。指具体部门所制定的规

3、定。7.procedures:程序，办法。主要指具体部门或行业为实施某法律制订的具体步骤。8.institutions:制度，法律，法令；公共机构。该词主要表示制度、公共机构或诉讼的提起。9.rule of law:法治。10.legal doctrines:法律理论。11.legal validity:法律效力。I.Definition of International Law 1.DefinitionInternational business law,also called international commercial law,refers to the body of legal

4、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)the parties have their nationalities from different

5、 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 of one or more parties.3.The meaning of“commercial”II.S

6、ources of International Business Law 1.International Treaties and ConventionsA treaty may also be known as agreement,protocol,covenant,convention,exchange of letters,accord,exchange of notes,memorandum of understanding,etc.Treaties are binding agreements between two or more states,and conventions ar

7、e legally binding agreements sponsored by international organizations,such as the United Nations.Main Treaties or Conventions in International Business LawConvention on Agency in the International Sale of Goods（1983年国际货物销售代理公约）United Nations Convention on Contracts of International Sale of Goods,CIS

8、G（1980年联合国国际货物买卖合同公约Hague Rules（海牙规则）Visby Rules（维斯比规则）Hamburg Rules（汉堡规则）Convention on the Law Applicable to Products Liability（1977年产品责任法律适用公约）Paris Convention on the Protection of Industrial Property（1883年保护工业产权巴黎公约）2.International trade Custom and UsageInternational trade Custom and usage means

9、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 determinate business contents;(2)It has become unvarying habit and common use in international

10、 business transactions;(3)Its the general rule that recognized by most countries.Customs and Usages in International Business LawIncoterms 2000（2000年国际贸易术语解释通则）Warsaw-Oxford Rules 1932（1932年华沙-牛津规则）Revised American Foreign Trade Definitions 1941（1941年美国对外贸易定义修正本）UCP600（2007年跟单信用证统一惯例）3.National Busi

11、ness LawsIII.History of International Business Law1.Ancient Roman Law stage（古罗马法阶段）2.Jus Mercatorum stage（商人习惯法阶段）3.Nationalized stage（商法本国化阶段）4.The Development and Tendency of Modern International Business LawOn the one hand,after the Second World War the rapid development of the world economy made

12、 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 made.On the other hand,during the communication of the countries,people formed some trade practice and customs which we

13、re 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 development.Because its law and rules will be more globalized,uniform and diversified.IV.Characteristics and Principles of Internat

14、ional Business Law1.Characteristics(1)International law has its own adjusting object.(2)The adjusting method of international law is direct adjusting method.2.Principles(1)Bona fides(Principle of good faith).(2)Principle of autonomy of will of the parties.(3)Principle of fairness.(4)Principle of fac

15、ilitating transaction.(5)Principle of recognition of international commercial customs and practices.V.Major Legal Systems of the World1.Common-law SystemThe 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

16、 decisions.Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals,rather than 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 the

17、se countries.Common law countries have kept the basic feature of the English legal system,which is the power of judges to make laws.2.Civil-Law SystemCivil 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 statu

18、tes(legislative acts).The majority of civil-law countries have assembled their statutes into one or more carefully organized collections 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 elsewhe

19、re.The Swiss Civil Code became the Turkish Civil Code in 1926 when it was adopted by Turkey;the Chilean Civil Code is the 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 SystemsIn ci

20、vil law,the main principles and rules are contained in codes and statutes,while in common law.Civil law is based on 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

21、 law.Differences between the two legal systems1)The theoretical basis of civil law is positive law,while common 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 princ

22、iples,while common law is based on specific circumstances.4)For the scope of law,civil law is mainly 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,wh

23、ile common law is most influenced by judges.7)For the application of law,in civil-law countries 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

24、)In civil-law countries the fact finder is judge,but in common-law countries the 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 co

25、urts,while the constitutional review of common law is by regular courts.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 SystemsNowadays there is obviously an a

26、ssimilation tendency between the two legal systems.On the one hand,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

27、law?And what are the sources of it?2.Tell the differences 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 OrganizationsI.IntroductionII.Partnership LawIII.

28、Law of CorporationsIV.Foreign Investment Enterprises in ChinaKey TermsSole proprietorship:个人独资企业Partnership:合伙企业Limited partnership:有限合伙Limited liability partnership:有限责任合伙Incorporated company:股份有限公司No-liability company:无限责任公司Joint venture:合资企业Legal Person:法人Memorandum of association/articles of inc

29、orporation:公司章程By-laws:附则，内部细则Board of directors:董事会Board of shareholders:股东会Debt security:债券Force majeure:不可抗力Insolvent liquidation:破产清算Jurisdiction:司法权，裁判权，管辖权I.IntroductionBusiness organization,also called business enterprise,refers to the economic organization that pursues management activities

30、with 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 fac

31、tors 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 distributions.9)Whet

32、her 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 Law1.Definition and Nature of PartnershipPartnership is the relation which subsists between persons carrying on a business in common wi

33、th 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 PartnershipThe advantages of a partnership can be summarized as below:(1)Informality and inexpensiveness in setting up.(2)Flexibility.(3)Ta

34、x.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/procedure1)A partnership agreement lasting for more than one year must be evidenced i

35、n writing.2)Limitations on a partnership.3)Anti-discrimination and equal opportunity legislation apply to partnership.(2)Partnership ContractPartnership contract is an agreement between partners concerning to the firm business.The following contents are often included in a partnership contract:1)The

36、 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)Management.7)Incoming,outgoing and dissolution.8)Liability for breach of the contr

37、act.9)Other content.(3)Professional Restrictions(4)Partner by EstoppelTwo 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 the apparent partners,he may be harmed and seek to recover damages from both of the apparent pa

38、rtners.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 that Wilson misled him to believe that Wilson and Porter were partners,he may sue Wilson for damages suf

39、fered 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)Property Rights of a Partner(5)Right to Gain Compensation5.Duties and Liabilities of a Partner(1)Duties1)Fiduciary du

40、ty.This kind of duty includes each partners following activities:a.Refraining from business in competition with the partnership,engaging in self-dealing,or usurping partnership opportunities unless copartners consent.b.Holding the duties of loyalty and care.c.Dealing with copartners in good faith.2)

41、Duty of partners to render information.(2)Liabilities1)Liabilities of partners in contract and to the Third Partya.The actions that each partner participating in the partnership affairs takes will bind the partnership and other partners.b.The right limit to certain partner cannot resist the third pa

42、rty.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 after 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 admi

43、tted 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;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 pro

44、perty 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,then the left partner should be liable for it.6.Partnership PropertyThe relationship of the partnership property includes internal property relationship betwee

45、n the partners and the external property relationship.It includes the following four aspects:(1)Unified management and use of the partnership property(2)The accumulative property of the partnership should be possessed by all the partners.(3)Surplus distribution and performance of debtThe surplus gai

46、ned from the management of the partnership belongs to all the partners.Partners can distribute the surplus according to the following 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 th

47、e agreement,the partners can distribute the surplus according to the regulation of law.For example,partners will distribute 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 contri

48、bution specified in the agreement.(4)Disposition of the property after the termination of the partnershipIf theres still 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 a

49、ccording to their financial contribution.7.Dissolution Dissolution is the ending or the breaking up of a partnership.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)B

50、y retirement of a partner where the firm is of no fixed duration.(2)By completion of the agreed period or venture.(3)By death or bankruptcy.(4)By unlawfully carrying out the business.(5)By order of a court.8.Winding UpWinding up refers to the procedure followed by distributing or liquidating any rem