国际商法课件

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 Imp

2、ortant 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

3、: 规定，规范。指具体部门所制定的规定。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 Business Law 1. DefinitionInternational business law, also called international commerc

4、ial 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) the partie

5、s 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 of one or mo

6、re parties.3. The meaning of “commercial”II. Sources 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

7、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（1）Convention Regulating AgencyConvention on Agency in the International Sale of Goods（

8、1983年国际货物销售代理公约）（2）Convention Regulating the Relationship of International Sale of Goods United Nations Convention on Contracts of International Sale of Goods, CISG（1980年联合国国际货物买卖合同公约（3） Convention Regulating International Transport of Goods Hague Rules（海牙规则）Visby Rules （维斯比规则）Hamburg Rules （汉堡规则）Co

9、nvention Concerning International Carriage of Goods by Rail,CIM（国际铁路货物运输公约）Agreement Concerning International Carriage of Goods by Rail（国际铁路货物联运协定）Convention for the Unification of Certain Rules for International Carriage by Air（统一国际航空运输某些规则的公约）United Nations Convention on International Multimodal T

10、ransport of Goods，1980（联合国国际货物多式联运公约）（4）Convention Regulating the Relationship of International BillConvention on the Unification of the Law Relating to Bills of Exchange and Promissory Notes（1930年关于统一汇票和本票的日内瓦公约）Convention Providing a Uniform Law of Cheques （关于支票的日内瓦公约）Convention on the Settlement

11、of Certain Conflicts of laws in Connection with Check （关于解决支票的若干法律冲突的公约）Convention on International Bill of Exchange and International Promissory Note of the United Nations （联合国国际汇票和国际本票公约）（5）Convention regulating Product LiabilityConvention on the Law Applicable to Products Liability （1977年产品责任法律适用

12、公约）（6）Convention on Protection of Intellectual Property RightsParis Convention on the Protection of Industrial Property （1883年保护工业产权巴黎公约）Bern Convention for the Protection of Literary and Artistic Works （关于保护文学艺术作品伯尔尼公约）Universal Copyright Convention （世界版权公约）Agreement on Trade Related Aspects of Int

13、ellectual Property Rights 与贸易有关的知识产权协定（7）Convention on International Commercial ArbitrationProtocol on Arbitration Clauses （日内瓦仲裁条款议定书）Convention on the Execution of Foreign Arbitral Awards （关于执行外国仲裁裁决的公约Convention on the Recognition and Enforcement of Foreign Arbitral Awards （承认和执行外国仲裁裁决的公约2. Inter

14、national trade Custom and UsageInternational 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 determinate busin

15、ess 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 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 Fore

16、ign Trade Definitions 1941（1941年美国对外贸易定义修正本）UCP600（2019年跟单信用证统一惯例）3. National Business 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

17、 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 made. On the other hand, duri

18、ng 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 development. Because its law and rule

19、s will be more globalized, uniform and diversified.IV. Characteristics and Principles of International Business Law1. Characteristics(1) International business law has its own adjusting object.(2) The adjusting method of international law is direct adjusting method.2. Principles(1) Bona fides ( Prin

20、ciple of good faith ).（诚实信用原则）(2) Principle of autonomy of will of the parties.（当事人意思自治原则）(3) Principle of fairness.（公平原则）(4) Principle of facilitating transaction. （交易便捷原则）(5) Principle of recognition of international commercial customs and practices.（承认国际商事习惯和惯例原则）V. Major Legal Systems of the Wor

21、ld1. 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 decisions. Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribu

22、nals, rather than through legislative statutes or executive action.英美法系又称普通法系，是指英国中世纪以来的法律，特别是以其普通法为基础发展起来的法律制度体系。Countries Belong to Common Law SystemCommon law system formed in England. Canada, Australia, New Zealand, Ireland, India, Pakistan, Malaysia and Singapore belong to common law system cou

23、ntries.英美法系的主要特点1）在法律的渊源上，判例法在英美法系中占有重要地位；2）在法律的分类方面，英美法系没有严格的部门法概念，法律分类以实用为准；3）英美法系对程序的重视要大于大陆法系；4）在法律职业方面，法官地位很高，职业流动性很大；5）在法律的思维方式和运作方式上，英美法系运用的是归纳法。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 a

24、re based mainly on statutes ( legislative acts ). The majority of civil-law countries have assembled their statutes into one or more carefully organized collections called codes. 大陆法系又称罗马法系，一般是指以罗马法为基础形成和发展起来的一个完整的法律体系的总称。Countries Belong to Civil Law SystemIt is sometimes said that there are two br

25、anches of civil law: French and German. Countries influenced by France include Belgium, Spain, Portugal, Italy, etc.Countries influenced by Germany include Austria, Switzerland and Holland.Besides, Norway, Sweden, Denmark, Finland and Iceland also belong to civil law system countries.大陆法系的特点1）大陆法系最重

26、要的特点是强调法典的作用，强调法律的系统化、逻辑化、分类化；2）大陆法系各国把全部法律区分为公法和私法；3）在法律形式上，大陆法系国家一般不存在判例法，而是对重要的部门法制定法典，并辅之以单行法规，构成了较为完备的成文法体系；4）在法官的作用上，大陆法系要求法官遵从法律明文规定办理案件，法官因而没有立法权；5）在法律推理形式和方法上，采用演绎法。Sources of Civil Law System1) Law2) Customs3) Legal Precedent（判例）4) Scientific Principle（学理）3. Comparison Between the two Lega

27、l SystemsIn civil 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

28、task in creating the law.两大法系的主要区别1) 法的渊源不同：大陆法系正式法的渊源是制定法，法律的核心理念是理性主义，表现为抽象规范；英美法系中判例法和制定法都是正式的法的渊源，法律的核心理念是经验主义。2) 法典编纂不同：大陆法系一般采用法典形式，是法院判案的直接依据；英美法系的法典往往是单行法律和法规，其运用还要依靠法院的判例解释。3) 法的结构不同：大陆法系基本的分类是公法和私法，进入20世纪后又出现了社会法、经济法、劳动法等混合性法律；英美法系的基本分类是普通法和衡平法。4) 适用法律的方法不同：大陆法系的法官审理案件，首先考虑制定法如何规定，然后按照有关规定

29、和案情做出判决；英美法系的法官则首先考虑以前类似的判例，将该案事实与先例事实比较后概括出可以适用的法律规则。5) 诉讼程序不同：大陆法系的诉讼程序以法官为中心，奉行职权主义；英美法系则采用对抗制，实行当事人主义，法官充当消极的、中立的角色。4. Assimilation Tendency of the Two SystemsNowadays there is obviously an assimilation tendency between the two legal systems. On the one hand, in civil law countries, case law and

30、 precedents are given more and more respect. On the other hand, there are more and more written laws and regulations in common law countries.Further more, assimilation tendency of international business law can facilitate international trade transaction. Exercises:1. Whats the definition of internat

31、ional business law? And what are the sources of it?2. Whats the definition and characteristics of civil law system and common law system? 3. Tell the differences between civil law and common law.4. What do you think of the developing tendency of international business law and the two major legal sys

32、tems of the world in future?Chapter Two Law of Business OrganizationsI. IntroductionII. Partnership LawIII. 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 co

33、mpany/Joint stock limited 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Joint and several liabilities连带责任 Several liability 个人责任Memorandum of association/articles of incorporation: 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F

34、orce majeure: 不可抗力Insolvent liquidation: 破产清算Jurisdiction: 司法权，裁判权，管辖权I. Introduction1.DefinitionBusiness organization, also called business enterprise, refers to the economic organization that pursues management activities with its own name with certain scale. If people want to commence a business,

35、 therere a number of factors 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 part

36、icipate in capital distributions. 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.2. Form(1)个人企业（Sole or Individual Proprietorship）A sole proprietorship is invested and managed by one per

37、son. It has three characteristics:1) It is invested by only one natural person.2) The investor undertakes unlimited liability with his personal property.3) Sole proprietorship isnt a legal person.(2)合伙企业（Partnership）(3)公司企业（Corporation）(4)跨国公司（Transnational Corporation, TNC）II. Partnership Law1. Def

38、inition and Nature of PartnershipPartnership is the relation which subsists between persons carrying on a business in common with view of profit. The requirements of a partnership are: (1) two or more persons; (2) carrying out a business; (3) as co-owners; (4) for profits.2. Advantages and Disadvant

39、ages of a PartnershipThe advantages of a partnership can be summarized as below:(1) Informality and inexpensiveness 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

40、. (3) Unanimous decisions. (4) Agency.3. Important preliminaries(1) Formalities/procedure1) A partnership agreement 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) Partnershi

41、p ContractPartnership contract is an agreement between partners concerning to the firm business. The following 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

42、 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 contract.9) Other content.(3) Professional Restrictions(4) Partner by EstoppelTwo persons may not be partners, yet in the ey

43、es 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 partners. For example, David thinks that Wilson, a wealthy person, is a partner of Porter, a poor person. David dec

44、ides 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 suffered when Porter failed to perform as agreed.4. Rights of a Partner(1) Management of the Partnership(2)

45、 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 duty.This kind of duty includes each partners following activities:a. Refraining from business in

46、 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) Duty of partners to render information.(2) Liabilities1) Liabilities of partners in contr

47、act and to the Third Partya. The actions that each partner participating in the partnership affairs 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

48、 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 admitted as the partner, there are three kinds of conditions: the new partner will take jo

49、int 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 property of the partnership, such as in the US.e. To the partner that has left the

50、 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 between the partners and the external property relationship. It includes the fol

51、lowing 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 gained from the management of the partnership belongs to all the partners

52、. 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 the agreement, the partners can distribute the surplus according to

53、 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 contribution specified in the agreement.(4) Disposition of the prop

54、erty 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 according to their financial contribution.7. Dissolution （解

55、散）Dissolution is the ending or the breaking up of a partnership. 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 period or venture.(3) By death or bankruptcy.(4) By unlawfully carrying out the business.(5

56、) By order of a court.8. Winding Up（清算）Winding up refers to the procedure followed by distributing or liquidating any remaining partnership assets after dissolution. Generally, creditors are paid first. Then the capital contribution is returned to the partners. After this if there are excess funds t

57、he liquidator will distribute them in proportion to their respective shares in the profits.9. Limited PartnershipA limited partnership is a form of partnership similar to a general partnership, except for one or more general partners, and there are one or more limited partners. A limited partnership

58、 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, representing the partnership and have joint and several liabilities for the debts of it. While the li

59、mited 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 limited partnership should have unlimited liabilities for its debts, because theres at least

60、 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) The death or bankruptcy of a limited partner cannot certainly affect the partnerships existe