1、ACCA考试 F4公司法与商法（China）真题 2009年 12月及答案解析(总分：99.96，做题时间：180 分钟)一、ALL TEN questions ar(总题数：10，分数：100.00)In relation to the judicial interpretation under the Chinese legal system:（分数：10.00）(1).(a) explain the meaning of judicial interpretation; (2 marks)（分数：2.50）_(2).(b) explain the different forms of j
2、udicial interpretations; (2 marks)（分数：2.50）_(3).(c) state the legal effect of judicial interpretations in legal practices; (2 marks)（分数：2.50）_(4).(d) state the reasons why judicial interpretations are needed in the current Chinese legal system. (4 marks)（分数：2.50）_In relation to the Labour Contract L
3、aw of China:（分数：10.00）(1).(a) explain how an employer may reduce the workforce by 20 persons or more or by a number of persons that is less than 20 but account for 10% or more of the total number of the enterprises employees. (5 marks)（分数：5.00）_(2).(b) explain who shall be retained with priority by
4、an employer when it reduces its workforce under the above circumstances. (5 marks)（分数：5.00）_In relation to the Contract Law of China:（分数：10.00）(1).(a) state the various circumstances under which a debtor may deposit the subject matter if the obligation is diffi cult to discharge; (6 marks)（分数：5.00）_
5、(2).(b) state which party shall bear the risks and costs when a debtor deposits the subject matter. (4 marks)（分数：5.00）_In relation to the Company Law of China:（分数：9.99）(1).(a) explain the term registration of incorporation; (2 marks) （分数：3.33）_(2).(b) explain the term registration of change; (2 mark
6、s) （分数：3.33）_(3).(c) state the various circumstances where a registration of change is required by the law. (6 marks)（分数：3.33）_In relation to the Company Law of China, state the restrictions on the following transfer or trading of the stocks held by the following of a joint stock company:（分数：10.00）(
7、1).(a) the sponsors; (4 marks) （分数：5.00）_(2).(b) the directors, supervisors and/or senior executives. (6 marks)（分数：5.00）_In relation to the Enterprise Bankruptcy Law of China:（分数：9.99）(1).(a) state the circumstances under which a rectifi cation plan may be carried out during the process of the enter
8、prise liquidation; (3 marks)（分数：3.33）_(2).(b) state what statutory procedures shall be taken if a rectifi cation plan is to be carried out during the process of the enterprise liquidation; (2 marks)（分数：3.33）_(3).(c) state the various powers of a liquidation administrator if an enterprise is pursuing
9、 a rectifi cation plan. (5 marks)（分数：3.33）_In relation to the Securities Law of China:（分数：10.00）(1).(a) explain the term underwriting with best efforts for an initial public offer of securities; (2 marks)（分数：2.50）_(2).(b) explain the term underwriting with fi rm commitment for an initial public offe
10、r of securities; (2 marks)（分数：2.50）_(3).(c) state the time limit and a specifi c obligation regarding securities for a securities company to underwrite securities by way of underwriting with best efforts; (2 marks)（分数：2.50）_(4).(d) explain the situation in which the underwriting with best efforts sh
11、all be deemed as a failure, and explain the statutory obligations of the issuer. (4 marks)（分数：2.50）_In October 2008 while Artai Construction Co Limited (Artai Co) was building a residence project, a serious accident took place because of geological causes. To rescue the project many construction mat
12、erials, such as cement and sand, were needed. However, it was impossible for Artai Co to fi nd such a huge quantity of construction materials in a very short period of time. Artai Co, under such circumstances, had to negotiate with a developer of the neighbouring project and fi nally reached an agre
13、ement to buy construction materials from the developer at a very high price, three times the normal market price at that time. Artai Co fell into fi nancial diffi culty as a lot of funds had been spent on the rescue work and failed to pay the price for the construction materials as agreed. A dispute
14、 arose between Artai Co and the developer. Required: Answer the following questions in accordance with the relevant provisions of the Contract Law of China, and give your reasons for your answer:（分数：9.99）(1).(a) State the validity of the agreement between Artai Co and the developer with respect to t
15、he purchase of the construction materials, and who would decide the validity of the agreement; (4 marks)（分数：3.33）_(2).(b) State what legal procedure Artai Co might take if it considered the agreement was unfair for it to pay the price. (2 marks)（分数：3.33）_(3).(c) State the precondition for Artai Co t
16、o take such a legal procedure. (4 marks)（分数：3.33）_In August 2009 Mr Zhang signed a contract (fi rst contract) to transfer his small apartment to Mr Li for the price of RMB 500,000 yuan. Mr Li paid the amount immediately after the conclusion of the contract but did not have it registered with the aut
17、hority for real estate registration. Knowing that Mr Zhang had sold the apartment to Mr Li, Mr Cao offered to buy the apartment for a higher price of RMB 550,000 yuan. For the purpose of getting more money Mr Zhang concluded another contract (second contract) to transfer the apartment to Mr Cao and
18、received the full payment from Mr Cao. Then they went to the authority for real estate registration and registered the second contract. Having completed the registration of the second contract, Mr Zhang went to Mr Li to return the RMB 500,000 yuan as paid previously. Mr Li did not want to accept the
19、 money but requested to hand over the apartment but Mr Zhang refused. Mr Li therefore fi led a lawsuit against Mr Zhang, requesting the court to issue an order to declare the invalidity of the second contract and confi rming his lawful ownership of the apartment. Required: Answer the following quest
20、ions in accordance with the relevant provisions of the Property Law of China, and give your reasons for your answer:（分数：9.99）(1).(a) State the legal issues involved in this dispute; (3 marks)（分数：3.33）_(2).(b) State how the court will deal with Mr Lis claim; (4 marks)（分数：3.33）_(3).(c) State how Mr Li
21、 could bring a claim to protect his rights. (3 marks)（分数：3.33）_An offi ce building owner (Owner) entered into a fi ve-year leasing contract in 2007 with IT Company. Under the leasing contract the annual rental of RMB 240,000 yuan should be paid within the fi rst month of each calendar year. In the m
22、iddle of September 2008 these two companies concluded a sales contract, by which IT Company provided Owner some IT equipment for RMB 200,000 yuan. Payment would be by a 20% deposit (RMB 40,000 yuan) to be made after the conclusion of the contract, and the remaining RMB 160,000 yuan to be made in thr
23、ee months after the delivery of the equipment. After the conclusion of the sales contract, Owner paid RMB 40,000 yuan as deposit and received the equipment provided by the IT Company. In February 2009, due to the fi nancial crisis, IT Company suffered a huge loss and was declared bankrupt by a compe
24、tent court under the application of its creditors. Therefore, it declined to pay the rental for 2009. The court designated a bankruptcy administrator to deal with the liquidation of IT Company. During the process of the liquidation, Owner declared the rental RMB 240,000 yuan due for 2009 as its cred
25、it, and requested to offset the remaining equipment price RMB 160,000 yuan. It also declared the termination of the leasing contract between the two companies. Required: Answer the following questions in accordance with the relevant provisions of the Enterprise Bankruptcy Law of China, and give your
26、 reasons for your answer:（分数：10.00）(1).(a) State whether Owners request for offset of the remaining equipment price was in conformity with the Enterprise Bankruptcy Law; (6 marks)（分数：5.00）_(2).(b) State how to deal with Owners request for the termination of the leasing contract. (4 marks)（分数：5.00）_A
27、CCA考试 F4公司法与商法（China）真题 2009年 12月答案解析(总分：99.96，做题时间：180 分钟)一、ALL TEN questions ar(总题数：10，分数：100.00)In relation to the judicial interpretation under the Chinese legal system:（分数：10.00）(1).(a) explain the meaning of judicial interpretation; (2 marks)（分数：2.50）_正确答案：(Judicial interpretation refers to th
28、e interpretations, made by the Supreme Peoples Court, relating to specifi c issues of application of law in the judicial practices under the authorisation of the Standing Committee of the National Peoples Congress.)解析：(2).(b) explain the different forms of judicial interpretations; (2 marks)（分数：2.50
29、）_正确答案：(Judicial interpretation can take one of the two forms: those judicial interpretations made by the Supreme Court to a specific case based on the request brought by a relevant local court, and those judicial interpretations given to provide a general guidance of the application of law in relat
30、ion to certain matters to all of the local courts.)解析：(3).(c) state the legal effect of judicial interpretations in legal practices; (2 marks)（分数：2.50）_正确答案：(Since the local courts always follow the responses given to a specifi c case or the rules as set up in judicial interpretation made by the Sup
31、reme Court, in relation to the application of laws, judicial interpretations have an actual legal binding force upon local courts at various levels.)解析：(4).(d) state the reasons why judicial interpretations are needed in the current Chinese legal system. (4 marks)（分数：2.50）_正确答案：(In the Chinese legal
32、 system the power of legislation is vested on the National Peoples Congress (NPC) and its Standing Committee. However, because of various reasons, it is helpful for the Supreme Court to make judicial interpretations on specifi c matters with respect of application of law in handling specifi c cases.
33、 First, the legislation by the NPC and its Standing Committee is failing to keep pace with the fast development of national economy. Secondly, China adopts a two-instance hearing system which means that most of the cases will be closed at intermediate courts or high court in different provincial are
34、as. In order to achieve a nation-wide unitary judicial judgement, it is necessary for the Supreme Court to give guidance to local courts relating to the application of laws.)解析：In relation to the Labour Contract Law of China:（分数：10.00）(1).(a) explain how an employer may reduce the workforce by 20 pe
35、rsons or more or by a number of persons that is less than 20 but account for 10% or more of the total number of the enterprises employees. (5 marks)（分数：5.00）_正确答案：(In accordance with Article 41 of the Labour Contract Law, in order to reduce the workforce by 20 persons or more or by a number of perso
36、ns that is less than 20 but account for 10% or more of the total number of employees, an employer shall take the following measures: (i) The employer shall, 30 days in advance, explain to the trade union of all employees the circumstances under which the enterprise has to reduce such number of emplo
37、yees; (ii) The employer shall collect the opinions from the trade union or employees; (iii) The employer shall make a written report as to the workforce reduction plan to the administration of local government.)解析：(2).(b) explain who shall be retained with priority by an employer when it reduces its
38、 workforce under the above circumstances. (5 marks)（分数：5.00）_正确答案：(In accordance with Paragraph 2 of Article 41 of the Labour Contract Law, in reducing the workforce of the above-mentioned number the following employees shall be retained with priority by the employer: (i) employees who have conclude
39、d fi xed-term labour contracts in a relatively long term with the employer; (ii) employees who have concluded open-ended labour contracts with the employer; (iii) employees who are the only workforce of their families and whose family members depend upon their income.)解析：In relation to the Contract Law of China:（分数：10.00）(1).(a) state the various circumstances under which a debtor may deposit the subject matter if the obligation is diffi cult to discharge; (6 marks)（分数：5.00）_
