卓越考研

对外经济贸易大学

2010年硕士学位研究生入学考试初试试题

考试科目：851法学专业理论

（请注意：此卷适用于报考法学理论，宪法学与行政法学，民商法学，诉讼法学，经济法学和国际法学专业的考生）

一 中文试题部分（100分）

 （一）简答题（每题6分，共30分）

1.违宪审查有哪些主要模式？

2.全国人民代表大会有哪些职权？

3.中国的宪法惯例有哪些内容？

4.根据我国银行业监督管理法，商业银行应遵守的审慎经营规则包括哪些内容？

5.商业贿赂与一般贿赂，佣金及回扣的区别何在？

 （二）法条评析（每小题5分，共10分）

1.评析《反垄断法》第19条：有下列情形之一的，可以推定经营者具有市场支配地位；（1）一个经营者在相关市场的市场份额达到1/2的；（2）两个经营者在相关市场份额合计达到2/3；（3）三个经营者在相关市场份额合计达到3/4的。

有前款第2项，第3项规定的情形，其中有的经营者市场份额补足1/10的，不应当推定该经营者具有市场支配地位。

被推定具有市场支配地位的经营者，有证据证明不具有市场支配地位的，不应当认定其具有市场支配地位。

2.评析《最高人民法院关于民事诉讼证据若干规定》第61条第1款：当事人可以向人民法院申请一至二名具有专门知识的人员出庭就案件的专门性问题进行说明。法院准许其申请，有关费用由提出申请的当事人负担。

 （三）案例题（第1题10分，第2题5分，共15分）

      1.甲在某市闹区开了一家名叫“长安食府”的饭店，办理了营业执照，后因身体原因，甲将饭店交给其弟弟乙与丙经营。一日建筑公司司机丁驾驶本单位一辆装有建筑材料的货车路过饭店，因建筑材料堆放太高，将“长安食府”的牌子碰掉了，正好将放在饭店门口的戊的摩托车砸坏，并将放在车里的掌上电脑砸坏。就赔偿一事戊与乙和丙交涉，两人推说甲是业主，与己无关；而甲则推说是建筑公司的司机丁驾驶车辆所致。于是，戊以甲为被告向法院起诉，要求赔偿损失。

  问题：

1.谁是本案中无独立请求权第三人？

2.法院如何使相关当事人进入诉讼？

  2.甲，乙，丙三位演员，应邀参加某公司庆典演出。合同规定，各演出4场，每场出场费分别为：甲800元，乙1500元，丙8000元。请计算三人应缴纳的个人所得税？

 （四）论述题（每题15分，共45分）

1.论中国公民参与政治生活方面的基本权利。

2.论经济法对经济危机的预防功能与调整功能。

3.论审判监督程序与再审程序的关系。

二 英文题（共50分，用中文回答）

 （一）翻译以下英文，并回答问题（15分）

Where the property rights of a citizen, legal person or other organization are infringed upon and damage is caused, it shall be dealt with according to the following provision:

(1) in case of imposition of a fine or penalty, recovery or confiscation of property, or expropriation of property and article, or appointment of expense in violation of the provision of the state, the property shall be returned;

(2) In case of seizure,attachment and freezing of property and causing damage or destruction to the property, compensation shall be paid according to the provisions of (3) and （4）of this Article;

(3) In case of damage to the property which should be returned, the original state shall be restored ，corresponding compensation money shall be paid according to the seriousness of damage;

(4) In case of destruction of the property which should be returned, corresponding compensation money shall be paid;

(5) In case of property has been auctioned, proceeds from the auction shall be paid;

(6) In case of rescission of a permit or license, order to suspend production or business operation, compensation shall be paid to cover the necessary current expenses incurred during the suspension period; or

(7) In case of other damages caused to the property, compensation shall be made in light of direct loss of property.

问题：以上条文最有可能出现在我国的哪一部法律中？从这些条文可以看出，立法者在设计这些救济措施时遵循什么原则？

 （二）阅读材料，回答下列问题（每题5分，共20分）

To the tax bureaus of various provinces, municipalities and autonomous regions:

In accordance with related stipulations on the experimentation with the shareholding system, the state permits some pilot enterprise to issue domestic special shares(referred to as B-shares for short) in Renminbi and shares issued and listed abroad(referred to as overseas shares), we hereby clarify the question concerning tax on the profits earned by enterprise with foreign investment, foreign enterprise and individual foreigners from the transfer of the above-mentioned stocks which they hold and from the incomes gained from dividends:

1.Profits earned form the transfer of stocks

1.a. The net income earned by enterprise with foreign investment from the transfer of stocks or stock rights, as well as the net incomes gained by foreign enterprises through the offices and sites they set up within China from the transfer of China’s domestic enterprise shares which they hold shall be charged into the amount of the enterprise’s current taxable incomes and income tax shall be paid. The net loss caused by the transaction of the above-mentioned stocks may eat up the amount of the enterprise’s current taxable income.

1.b. The net profits earned by a foreign enterprise from the transfer of B-shares issued by China’s domestic enterprises and overseas stocks held not by its offices and sites set up within China, and the net incomes gained by individual foreigners from the transfer of B-shares issued by China’s domestic enterprises and overseas stocks are temporarily exempt from income tax.

1.c. A foreign enterprise and individual foreigner,who earns income from the transfer of the stock rights of enterprise with foreign investment within China that exceeds the income gained from the transfer of part of the amount of his investment, shall still pay withholding income tax or individual income tax at a 20 percent rate in accordance with the stipulations of the Documents of the Ministry of Finance.

2.Income from dividends

2.a.The profits or dividends gained by foreign investors from the enterprise with foreign investment and the dividends gained by individual foreigners from the Sino-foreign joint ventures are exempt from income tax.

2.b. The income from dividends gained by foreign enterprise and individual foreigners who hold B-shares or overseas shares from China’s domestic enterprise which issue B-shares or overseas shares, is temporarily exempt from enterprise income tax and individual income tax.

State Administration of Taxation of the People’s Republic of China

问题：

1.国家税务总局发布上述通知的法理基础是什么？

2.上述通知中提及的“B-shares”指的是什么？它和“overseas shares”又有什么区别？

3.根据第1.b款的规定，外籍个人转让B-shares和转让overseas shares 时的税负水平是否一样？为什么？

4.甲是一家中国公司在英属维京群岛注册的企业，它的股票今年在多家海外证券交易所成功上市，股票交投活跃，外国投资人获利甚丰。按照上述通知的规定，这些投资人能否享受税收优惠？

 （三）阅读案例，回答下列问题（每小题5分，共15分）

  Vysanthi Shipping Company Limited v. China Grains, Oils and Feedstuffs Co., Ltd, etc.

The Claimant: Vysanthi Shipping Company Limited

Domicile: C.pantclides Ave., P.O. Box 2313, Nicosia, the Republic of Cyprus

The Respondents:

1.China Grains, Oils and Feedstuffs Co., Ltd.(COFCO)

Domicile: 208 Anding Men Wai Ave., Dong Cheng Dist., Beijing, PRC

2.PICC Property and Casualty Company Limited Hebei Province Branch (PICC Hebei)

Domicile:499 Yuhua Xi Lu Rd., Shijiazhuang, Hebei, PRC

3.PICC Holding Co.

Domicile: 69 Dong Heyan Jie Ave., Xuanxu Dist., Beijing, PRC

Summary of Facts:

The dispute between the claimant and the first respondent on the B/L of Joanna V Ship issued on 28 June 1996 had heard by the London Court of International Arbitration (LCIA)  and an award was issued on 14 March 2001. According to the award, the claimant should obtain USD 367,136.86 in general average contribution (G.A.C.) and USD 28,500 in demurrage(注：滞期费）. The claimant was also awarded the interest on 7% per year of the above amount. The interest of demurrage (USD 28，500) shall be calculated from 1 August 1996. The commencement time for calculating the G.A.C. Interest, however, would depend on the negotiation result between the claimant and the first respondent. If their negotiation failed, the arbitration court would then decide the date. The ending dates of interest calculation for both the G.A.C and the demurrage are the day when the first respondent makes the de facto payment to the applicant. On 20 June 2001, LCIA made the second award in that the commencing date of calculating the interest of demurrage should be 12 July 1996. In the same award, the arbitration fees in two arbitration procedures were ordered to be paid by the first respondent. On 13 February 2002, the third award was made to confirm that the cost of the whole dispute should be paid by the first respondent.

On 28 March 2002, the first respondent brought an action to the Commercial Court of Queen’s Bench Division, applying for vacating the above awards. On 10 July 2002,the Commercial Court ruled to sustain the awards. On 17 January 2004, the claimant applied with the Tianjin Maritime Court should recognition and enforcement of the above three awards in China.

Reasoning:

Both China and British are members of the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards. As long as foreign arbitral awards are not inconsistent with the convention and with the Chinese legislation, this court should recognize and enforce the awards made by LCIA.

The Civil Procedure Law of People’s Republic of China rules in Article 219 as follows:“the time limit for the submission of an application for execution shall be one year, if both or one of the parties are citizens; it shall be six months if both parties are legal person or other organization.”

The three awards are issued on 14 March 2001, 20 June 2001 and 13 February 2002 respectively. The Tianjin Maritime Court received the written application on 17 January 2004. Although the exact date when the awards were served to the parties of the dispute is not clear, and the performance time period of the awards also remains unclear, the fact that the respondents brought the action in the Commercial Court of Queen’s Bench Division on 28 March 2002 has clearly proven that the fist respondent, the second respondents and the claimant have received the awards on or before that day. Therefore, the application and enforcement of foreign arbitral award has been overdue.

Decision；

The applicant’s petition is denied, and is ordered to pay the court cost of RMB 500.

问题：

1.本案的诉因是什么？本案的管辖法院是哪个法院？

2.Vysanthi Shipping Company Limited, COFCO,PICC Hebei以及PICC Holding Co.这些当事人之间存在什么样的诉讼法律关系？

3.本案的判决理由是什么？

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