ACCA考试F4公司法与商法（English）真题2013年12月及答案解析.doc

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1、ACCA 考试 F4 公司法与商法（English）真题 2013 年 12 月及答案解析(总分：99.99，做题时间：180 分钟)一、ALL TEN questions ar(总题数：10，分数：100.00)In the context of the English legal system, explain:（分数：9.99）(1).(a) the meaning of statutory interpretation; (2 marks)（分数：3.33）_(2).(b) the literal approach, including the golden rule; and (4

2、marks)（分数：3.33）_(3).(c) the purposive approach, including the mischief rule. (4 marks)（分数：3.33）_In relation to the law of contract:（分数：10.00）(1).(a) define and explain consideration. (3 marks)（分数：5.00）_(2).(b) explain and distinguish between the following terms: (i) executory consideration; (2 marks

3、) (ii) executed consideration; (2 marks) (iii) past consideration. (3 marks)（分数：5.00）_In relation to the tort of negligence, explain（分数：10.00）(1).(a) the meaning of duty of care; (5 marks)（分数：5.00）_(2).(b) the standard of care owed by one person to another. (5 marks)（分数：5.00）_(1).(a) In relation to

4、partnership and company business forms, explain the meaning of limited liability. (4 marks)（分数：5.00）_(2).(b) In relation to registered companies, explain and distinguish between: (i) unlimited companies; (2 marks) (ii) companies limited by guarantee; (2 marks) (iii) companies limited by shares. (2 m

5、arks)（分数：5.00）_1.State and explain the grounds upon which a person may be disqualified under the Company Directors Disqualification Act 1986. (10 marks)（分数：10.00）_In the context of the formation of companies, explain:（分数：10.00）(1).(a) the statement of capital and initial shareholdings; (4 marks)（分数：

6、5.00）_(2).(b) the articles of association, paying particular regard to how these can be altered. (6 marks)（分数：5.00）_In relation to employment law:（分数：10.00）(1).(a) explain the meaning of constructive dismissal; (5 marks)（分数：5.00）_(2).(b) describe the remedies available in relation to a successful cl

7、aim for unfair dismissal. (5 marks)（分数：5.00）_Abid regularly took his car to be serviced at his local garage, Bust Ltd. On the four previous occasions, before handing his car over to the garage, Abid had always been required to read and sign a contractual document which contained the following statem

8、ent in bold red type: Bust Ltd accepts no responsibility for any consequential loss or injury sustained as a result of any work carried out by the company, whether as a result of negligence or otherwise. On the most recent occasion, due to the fact that the garage was very busy when he arrived, Abid

9、 was not asked to sign the usual document. He was, however, given a receipt for the car, which he accepted without reading. Bust Ltds usual business terms were printed on the back of the receipt, including the statement above. On driving the car home after its service, Abid was severely injured when

10、 the car suddenly burst into flames. It subsequently emerged that the fire had been the result of the negligent work by one of Bust Ltds mechanics. Bust Ltd has accepted that its mechanic was negligent but denies any liability for Abids injuries, relying on the exclusion clause above. Required: Advi

11、se Abid: （分数：10.00）(1).(a) whether the exclusion clause was incorporated into his contract with Bust Ltd; (7 marks)（分数：5.00）_(2).(b) as to the possible impact of the Unfair Contract Terms Act 1977 regarding any claim Abid might make against Bust Ltd in relation to his injuries. (3 marks)（分数：5.00）_2.

12、Chu, a suitably qualified person, was appointed as the company secretary of Do plc. Since his appointment, Chu has entered into the following contracts in the name of Do plc: (a) an extremely expensive, long-term contract with Ex plc for the maintenance of Do plcs photocopiers; (b) an agreement to h

13、ire a car from Far plc which Chu used for his own, non-business related purposes; (c) an agreement with Gro plc to landscape the garden of his, Chus, personal house. The directors of Do plc have only recently become aware of these contracts. Required: In the context of company law, with specific reg

14、ard to the authority of company secretaries, advise the directors of Do plc whether the above agreements are binding on the company. (10 marks)（分数：10.00）_3.At the start of 2010, Hot Ltd entered into the following transactions in an endeavour to sustain its operation: (a) It borrowed 50,000 from Ina,

15、 secured by a floating charge. The floating charge was created on 1 April and it was registered on 15 April; (b) It borrowed a further 50,000 from Jo. This loan was secured by a floating charge created on 3 April and registered on 12 April; (c) It borrowed 100,000 from Ko-Bank. This loan was secured

16、 by a fixed charge. It was created on 5 April and was registered on 16 April. Unfortunately, the money borrowed was not sufficient to sustain Hot Ltd and, in August 2013, compulsory liquidation proceedings were begun. It is extremely unlikely that there will be sufficient assets to pay the debts owe

17、d to all of the secured creditors. Required: Advise Hot Ltd as to the order of security and payment of the above debts and explain why they are placed in that order. (10 marks)（分数：10.00）_ACCA 考试 F4 公司法与商法（English）真题 2013 年 12 月答案解析(总分：99.99，做题时间：180 分钟)一、ALL TEN questions ar(总题数：10，分数：100.00)In the

18、context of the English legal system, explain:（分数：9.99）(1).(a) the meaning of statutory interpretation; (2 marks)（分数：3.33）_正确答案：(Statutory interpretation In order to apply any piece of legislation, judges have to determine its meaning. In other words, they are required to interpret the statute before

19、 them in order to give it meaning. The difficulty, however, is that the words in statutes do not speak for themselves and interpretation is an active process, and at least potentially a subjective one depending on the situation of the person who is doing the interpreting. Judges have considerable po

20、wer in deciding the actual meaning of statutes, especially when they are able to deploy a number of competing, not to say contradictory, mechanisms for deciding the meaning of the statute before them. There are, essentially, two contrasting views as to how judges should go about determining the mean

21、ing of a statute the restrictive, literal approach and the more permissive, purposive approach.)解析：(2).(b) the literal approach, including the golden rule; and (4 marks)（分数：3.33）_正确答案：(The literal approach The literal approach is dominant in the English legal system, although it is not without criti

22、cs, and devices do exist for circumventing it when it is seen as too restrictive. This view of judicial interpretation holds that the judge should look primarily to the words of the legislation in order to construe its meaning and, except in the very limited circumstances considered below, should no

23、t look outside of, or behind, the legislation in an attempt to find its meaning. Within the context of the literal approach there are two distinct rules: (i) The literal rule Under this rule, the judge is required to consider what the legislation actually says rather than considering what it might m

24、ean. In order to achieve this end, the judge should give words in legislation their literal meaning, that is, their plain, ordinary, everyday meaning, even if the effect of this is to produce what might be considered an otherwise unjust or undesirable outcome. In Whitley v Chapell (1868), the legisl

25、ation under consideration made it an offence to impersonate any person entitled to vote. The accused had actually impersonated a dead person and was found not guilty, as a dead person was not entitled to vote. (ii) The golden rule This rule is applied in circumstances where the application of the li

26、teral rule is likely to result in what appears to the court to be an obviously absurd result. It should be emphasised, however, that the court is not at liberty to ignore, or replace, legislative provisions simply on the basis that it considers them absurd; it must find genuine difficulties before i

27、t declines to use the literal rule in favour of the golden one. As examples, there may be two apparently contradictory meanings to a particular word used in the statute, or the provision may simply be ambiguous in its effect. In such situations, the golden rule operates to ensure that preference is

28、given to the meaning that does not result in the provision being an absurdity. In Adler v George (1964), the defendant was found guilty, under the Official Secrets Act 1920, with obstruction in the vicinity of a prohibited area, although she had actually carried out the obstruction inside the area.)

29、解析：(3).(c) the purposive approach, including the mischief rule. (4 marks)（分数：3.33）_正确答案：(The purposive approach The purposive approach rejects the limitation of the judges search for meaning to a literal construction of the words of legislation itself. It suggests that the interpretative role of the

30、 judge should include, where necessary, the power to look beyond the words of statute in pursuit of the reason for its enactment, and that meaning should be construed in the light of that purpose so as to give it effect. This purposive approach is typical of civil law systems. In these jurisdictions

31、, legislation tends to set out general principles and leaves the fine details to be filled in later by the judges who are expected to make decisions in the furtherance of those general principles. European Union (EU) legislation tends to be drafted in the civil law manner. The need to interpret such

32、 legislation has forced a change in that approach adopted by UK courts in relation to EU legislation and even with respect to domestic legislation designed to implement EU legislation. Thus, in Pickstone v Freemans plc (1988), the House of Lords held that it was permissible, and indeed necessary, fo

33、r the court to read words into inadequate domestic legislation in order to give effect to EU law in relation to provisions relating to equal pay for work of equal value. However, it has to recognised that the purposive rule is not particularly modern and has its precursor in a long established rule

34、of statutory interpretation, namely the mischief rule. The mischief rule This rule permits the court to go behind the actual wording of a statute in order to consider the problem that the statute is supposed to remedy. In its traditional expression, it is limited by being restricted to using previou

35、s common law rules in order to decide the operation of contemporary legislation. Thus in Heydons case (1584), it was stated that in making use of the mischief rule, the court should consider what the mischief in the law was which the common law did not adequately deal with and which statute law had

36、intervened to remedy. Use of the mischief rule may be seen in Corkery v Carpenter (1950), in which a man was found guilty of being drunk in charge of a carriage although he was in fact only in charge of a bicycle. )解析：In relation to the law of contract:（分数：10.00）(1).(a) define and explain considerat

37、ion. (3 marks)（分数：5.00）_正确答案：(Consideration English law does not enforce every promise which is made. One way in which the courts limit the type of promise that they have to deal with is through the operation of the doctrine of consideration. English law does not enforce gratuitous promises, i.e. pr

38、omises given for no return, unless of course such promises are given by way of a formal deed. For a simple promise to be enforceable in a court of law, it is necessary that the person to whom the promise was made, the promisee, should have done something in return for the promise from the promisor.

39、That something done in return for a promise is consideration and can therefore be understood as the price paid for a promise. The element of bargain implicit in the idea of consideration may be seen in Sir Frederick Pollocks definition of it, subsequently adopted by the House of Lords in Dunlop v Se

40、lfridge (1915), as: An act or forbearance of one party, or the promise thereof, is the price for which the promise of the other is bought, and the promise thus given for value is enforceable. An alternative, and shorter, definition of consideration is some benefit to the promisor or detriment to the

41、 promisee. It is important to note that it is not necessary for both elements in the definition to be present to support a legally enforceable agreement. Although in practice there usually is a reciprocal exchange of benefit and detriment, it is nonetheless possible for a promisee to provide conside

42、ration for a promise without their action directly benefiting the promisor. As long as the promisee acts to their detriment, it is immaterial whether that act actually benefits the promisor or not. The promisee will still have provided consideration and the promise made to elicit the promisees actio

43、n will be legally enforceable against the promisor.)解析：(2).(b) explain and distinguish between the following terms: (i) executory consideration; (2 marks) (ii) executed consideration; (2 marks) (iii) past consideration. (3 marks)（分数：5.00）_正确答案：(Consideration can be divided into the following categories: (i) Executory consider