ACCAF1-F3模拟题及解析(6)11932.pdf

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1、 财经网络教育领导品牌 _ 高顿网校 All Rights Reserved 版权所有 复制必究 1 第 1 章 ACCA F1-F3 模拟题及解析（6）1.a)Explain the doctrine of binding precedent in English law paying particular regard to the hierarchy of the courts;(5 marks)b)Assess the importance of delegated legislation as a source of contemporary law paying particula

2、r attention to the power of the Courts with respect to it.(5 marks)2.In relation to the contents of a contract explain the following:(a)Conditions;(4 marks)(b)Warranties;(3 marks)(c)Innominate terms.(3 marks)3.Explain the liability of the members of partnerships formed under the following Acts:(a)Pa

3、rtnership Act 1890;(3 marks)(b)Limited Partnerships Act 1907;(3 marks)(c)Limited Liability Partnership Act 2000.(4 marks)4.a)Explain what legal limitations there are on the names that may be adopted by companies,paying particular regard to the tort of passing off.(5 marks)b)promoter 5.In relation to

4、 companies loan capital explain the following terms:(a)debenture;(3 marks)(b)fixed charge;(3 marks)(c)floating charge.(4 marks)6.(a)Annual general meeting and extraordinary general meeting;(5 marks)(b)State and explain the grounds under which a company may be wound up under section 122 of the Insolv

5、ency Act 1986;(5 marks)7.(a)Explain the term money laundering and how such activity is conducted.(5 marks)(b)Explain how the Proceeds of Crime Act 2002 seeks to control money laundering.(5 marks)财经网络教育领导品牌 _ 高顿网校 All Rights Reserved 版权所有 复制必究 2 8.Ali is an antique dealer and one Saturday in November

6、 2007 he put a vase in the window of his shop with a sign which stated exceptional piece of 19th century pottery on offer for 500.Ben happened to notice the vase as he walked past the shop and thought he would like to have it.Unfortunately,as he was late for an important meeting,he could not go into

7、 the shop to buy it,but as soon as his meeting was finished he wrote to Ali agreeing to buy the vase for the stated price of 500.The letter was posted at 11:30 am.Later on the same day,Chet visited Alis shop and said he would like the vase but was only willing to pay 400 for it.Ali replied that he w

8、ould accept 450 for the vase,but Chet insisted that he was only willing to pay 400 and left the shop.However,on his journey home Chet realised that 450 was actually a very good price for the vase and he immediately wrote to Ali agreeing to buy it for that price.His letter was posted at 12:30 pm.Just

9、 before closing time at 5 pm.Di came into Alis shop and she also offered 400 for the vase.This time Ali agreed to sell the vase at that price and Di promised to return the following Monday with the money.On the Monday morning Ali received both of the letters from Ben and Chet before Di could arrive

10、to pay and collect the vase.Required:From the point of view of the law of contract advise Ali as to his legal relations with Ben,Chet and Di.9.Fine Ltd specialises in providing software to the financial services industry.It has two offices,one in Edinburgh and the other,its main office,in London.In

11、January 2003 Gus was employed as a software designer attached to the Edinburgh office.However,by May 2004,Gus was informed that he was to be transferred to the head office in London,which is more than 350 miles from his usual workplace.Gus refused to accept the transfer on the basis that he had been

12、 employed to work in Edinburgh not London.Consequently,on 1 June 2004 he wrote to Fine Ltd terminating his contract with them.Required:Analyse the scenario from the point of view of employment law and in particular advise Gus as to:(a)his rights on the termination of his contract of employment with

13、Fine Ltd;(b)the likelihood of a successful claim for unfair dismissal;(c)the remedies which might be available were he to win such an action.财经网络教育领导品牌 _ 高顿网校 All Rights Reserved 版权所有 复制必究 3 10.Three years ago Norm,a wealthy retired accountant,agreed to become a director of his son Owens company,Pus

14、h Ltd,which had been established three years previously.Owen told Norm that he only wanted his name amongst the directors in order to give Push Ltd increased credibility.Norm never actually took part in the management of the company and never attended any company meetings.Norm has now learned that P

15、ush Ltd is insolvent and owes considerable debts.Owen has confessed to Norm that he had deliberately hidden the fact that Push Ltd has been insolvent and carried on trading for the past two years,in which time Push Ltds debts have increased from 50,000 to 300,000.Required:Advise Norm in regard to th

16、e following:(a)the common law duty of care owed by directors to their companies;(b)any potential liability on behalf of himself or Owen for fraudulent trading under s.213 of the Insolvency Act 1986;(c)any potential liability of himself or Owen for wrongful trading under s.214 of the Insolvency Act 1

17、986.试题答案 1.a)The doctrine of binding precedent,or stare decisis,lies at the heart of the English legal system.The doctrine refers to the fact that within the hierarchical structure of the English courts,a decision of a higher court will be binding on a court lower than it in that hierarchy.When judg

18、es try cases they will check to see if a similar situation has come before a court previously.If the precedent was set by a court of equal or higher status to the court deciding the new case then the judge in the present case should normally follow the rule of law established in the earlier case.The

19、 Hierarchy of the Courts The House of Lords stands at the summit of the English court structure and its decisions are binding on all courts below it in the hierarchy.As regards its own previous decisions,up until 1966 the House of Lords regarded itself as bound by its previous decisions.In a Practic

20、e Statement(1966 3 All ER 77)of that year,however,Lord Gardiner indicated that the House of Lords would in future regard itself as free to depart from its previous decisions where it appeared right to do so.The Court of Appeal.In civil cases the Court of Appeal is generally bound by previous decisio

21、ns of the House of Lords and its own previous decisions.There are,however,a number of exceptions to this general rule.The exceptions arise where:(i)there is a conflict between two previous decisions of the Court of Appeal.(ii)a previous decision of the Court of Appeal has been overruled by the House

22、 of Lords.The Court of Appeal can ignore a previous decision of its own which is inconsistent with European Community law or with a later decision of the European Court.财经网络教育领导品牌 _ 高顿网校 All Rights Reserved 版权所有 复制必究 4(iii)the previous decision was given per incuriam,i.e.in ignorance of some authori

23、ty that would have led to a different conclusion The High Court is bound by the decisions of superior courts.Decisions by individual High Court judges are binding on courts inferior in the hierarchy,but such decisions are not binding on other High Court judges although they are of strong persuasive

24、authority and tend to be followed in practice.Crown Courts cannot create precedent and their decisions can never amount to more than persuasive authority.County courts and Magistrates courts do not create precedents.It is important to establish that it is not the actual decision in a case that sets

25、the precedent;that is set by the rule of law on which the decision is founded.This rule,which is an abstraction from the facts of the case,is known as the ratio decidendi of the case.Any statement of law that is not an essential part of the ratio decidendi is,strictly speaking,superfluous;and any su

26、ch statement is referred to as obiter dictum,i.e.said by the way.Although obiter dicta statements do not form part of the binding precedent they are persuasive authority and can be taken into consideration in later cases.b)Within the United Kingdom Parliament has the sole power to make law by creati

27、ng legislation.Parliament,however,can pass on,or delegate,its law making power to some other body or individual.Delegated legislation is of particular importance in the contemporary legal context.Instead of definitive Acts of Parliament,which attempt to lay down detailed provisions,the modern form o

28、f legislation tends to be of the enabling type,which simply states the general purpose and aims of the Act.Such Acts merely lay down a broad framework,whilst delegating to ministers of state the power to produce detailed provisions designed to achieve those general aims.Thus delegated legislation is

29、 law made by some person,or body,to whom Parliament has delegated its general law making power.The output of delegated legislation in any year greatly exceeds the output of Acts of Parliament and,therefore,at least statistically it could be argued that delegated legislation is actually more signific

30、ant than primary Acts of Parliament.There are various types of delegated legislation:(i)Orders in Council permit the government,through the Privy Council to make law.The Privy Council is nominally a non partypolitical body of eminent parliamentarians,but in effect it is simply a means through which

31、the government,in the form of a committee of Ministers,can introduce legislation without the need to go through the full Parliamentary process.(ii)Statutory Instruments are the means through which government ministers introduce particular regulations under powers delegated to them by Parliament in e

32、nabling legislation.(iii)Bye-laws are the means through which local authorities and other public bodies can make legally binding rules and may be made under such enabling legislation The use of delegated legislation has the following advantages:(i)Time-saving.Delegated legislation can be introduced

33、quickly where necessary in particular cases and permits rules to be changed in response to emergencies or unforeseen problems.The use of delegated legislation,also saves Parliamentary time generally.It is generally considered better for Parliament to spend its time in a thorough consideration of the

34、 principles of enabling legislation,leaving the appropriate minister,or body,to establish the working detail under their authority.(ii)Access to particular expertise.Given the highly specialised and extremely technical nature of many of the regulations that are introduced through delegated legislati

35、on,the majority of 财经网络教育领导品牌 _ 高顿网校 All Rights Reserved 版权所有 复制必究 5 Members of Parliament simply do not have sufficient expertise to consider such provisions effectively.It is necessary therefore,that those authorised to introduce delegated legislation should have access to the external expertise r

36、equired to make appropriate regulations.In regard to bye-laws,local knowledge should give rise to more appropriate rules than general Acts of Parliament.(iii)Flexibility.The use of delegated legislation permits ministers to respond on an ad hoc basis to particular problems as and when they arise.The

37、re are,however,some disadvantages in the prevalence of delegated legislation:(i)Accountability.A key issue involved in the use of delegated legislation concerns the question of accountability.Parliament is presumed to be the source of statute law,but with respect to delegated legislation government

38、ministers,and the civil servants who work under them to produce the detailed provisions,are the real source of the legislation.As a consequence,it is sometimes suggested that the delegated legislation procedure gives more power than might be thought appropriate to such un-elected individuals.(ii)Bul

39、k.Given the sheer mass of such legislation,both Members of Parliament,and the general public,face difficulty in keeping abreast of delegated legislation.These potential shortcomings in the use of delegated legislation are,at least to a degree,mitigated by the fact that specific controls have been es

40、tablished to oversee it.(i)Parliamentary control over delegated legislation.Power to make delegated legislation is ultimately dependent upon the authority of Parliament.Parliament,therefore,retains general control over the procedure for enacting such law.New regulations in the form of delegated legi

41、slation are required to be laid before Parliament.(ii)Judicial control of delegated legislation.A validly enacted piece of delegated legislation has the same legal force and effect as the Act of Parliament under which it is enacted;but equally it only has effect to the extent that its enabling Act a

42、uthorises it.Consequently,it is possible for delegated legislation to be challenged,through the procedure of judicial review,on the basis that the person or body to whom Parliament has delegated its authority has acted in a way that exceeds the limited powers delegated to them or has failed to follo

43、w the appropriate procedure set down in the enabling legislation.Any provision made in this way is said to be ultra vires and is void.Additional powers have been given to the courts under the Human Rights Act 1998 with respect to delegated legislation.Section 4 of the HRA expressly states that the c

44、ourts cannot declare primary legislation invalid as being contrary to the rights protected by the Act and limits them to issuing a declaration of incompatibility in such circumstances.It is then for Parliament to act on such a declaration to remedy any shortcoming in the law if it so wishes.However,

45、such limitation does not apply to secondary legislation,which the courts can now declare invalid on the grounds of not being compatible with the HRA.Orders in Council are treated as primary legislation for this purpose.2.Contractual terms,are statements which form part of the contract.Parties to a c

46、ontract will normally be bound to perform any promise that they have agreed to and failure to perform will lead to an action for breach of contract,although the precise nature of the remedy will depend upon the nature of the promise broken.Some statements do not form part of a contract,even though t

47、hey might have induced the other party to enter into the contract.These pre-contractual statements 财经网络教育领导品牌 _ 高顿网校 All Rights Reserved 版权所有 复制必究 6 are called representations.The consequences of such representations being false is an action for misrepresentation not an action for breach of contract

48、,and leads to different remedies.It is important,therefore,to decide precisely what promises are included in the contract.Once it is decided that a statement is a term,rather than merely a pre-contractual representation,it is further necessary to decide which type of term it is,in order to determine

49、 what remedies are available for its breach.Terms can be classified as one of three types.a)Conditions A condition is a fundamental part of the agreement it is something which goes to the root of the contract.Breach of a condition gives the injured party the right either to terminate the contract an

50、d refuse to perform their part of it,or to go through with the agreement and sue for damages.The classic case in relation to breach of condition is Poussard v Spiers&Pond(1876)in which the plaintiff had contracted with the defendants to sing in an opera they were producing.Due to illness she was una