ACCA考试F4公司法与商法（China）真题2010年12月及答案解析.doc

1、ACCA 考试 F4 公司法与商法（China）真题 2010 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 Civil Procedure Law of China:（分数：10.00）(1).(a) explain the term exclusive jurisdiction; (2 marks)（分数：5.00）_(2).(b) state the major legal characteristics of exclusive jurisdicti

2、on, in terms of: (i) the basis of exclusive jurisdiction; and (4 marks) (ii) the effect of the rule of exclusive jurisdiction. (4 marks)（分数：5.00）_In relation to the Property Law of China: （分数：10.00）(1).(a) explain the term right of lien; (4 marks)（分数：5.00）_(2).(b) state THREE conditions to be met fo

3、r a party to claim the right of lien. (6 marks)（分数：5.00）_In relation to the Labour Contract Law of China:（分数：10.00）(1).(a) state the various powers of the labour administration in exercising its supervisory and examining functions; (2 marks)（分数：5.00）_(2).(b) state any FOUR kinds of situations under

4、which the labour administration may issue administrative orders to an employer for violations of Labour Contract Law. (8 marks)（分数：5.00）_In relation to the Contract Law of China:（分数：10.00）(1).(a) explain the term termination of contract; (2 marks)（分数：5.00）_(2).(b) explain and distinguish between ter

5、mination of contract and dissolution of contract. (8 marks)（分数：5.00）_In relation to the Company Law of China:（分数：10.00）(1).(a) state the basic rules regarding the shareholders of: (i) a general limited liability company; (2 marks) (ii) a sole-person limited liability company and a wholly state-owned

6、 company; and (2 marks)（分数：5.00）_(2).(b) state the requirements for capital of: (i) a general limited liability company; (2 marks) (ii) a sole-person limited liability company; and (2 marks) (iii) a company with exclusive state-ownership. (2 marks)（分数：5.00）_In relation to the Enterprises Bankruptcy

7、Law of China, state the legal effect of the acceptance of an application for bankruptcy by the court:（分数：9.99）(1).(a) in terms of the preservative measures against the assets of the debtor; (4 marks)（分数：3.33）_(2).(b) in terms of the enforcement procedure against the relevant debtor; (4 marks)（分数：3.3

8、3）_(3).(c) in terms of pending legal actions against a debtor. (2 marks)（分数：3.33）_In relation to the Securities Law of China:（分数：9.99）(1).(a) explain the term sponsor in underwriting securities; (2 marks)（分数：3.33）_(2).(b) state the objective of the legislation to set up the system of sponsorship in

9、underwriting securities; (2 marks)（分数：3.33）_(3).(c) state the various legal liabilities of a sponsor, in providing professional services, for his wrong doings or failure to perform his functions. (6 marks)（分数：3.33）_In 2009 Mr Lee and the villager committee entered into a contract for the management

10、of land, under which he obtained the right to manage the contracted piece of land in a small mountain for 30 years. The contract was duly registered with the relevant government authority in light of the Property Law. One day when Mr Lee was planting trees on the mountain, he accidentally found a sm

11、all coal mine in the mountain. Having discovered this information many villagers rushed to the mountain to exploit coal for sale. Mr Lee demanded the villagers stop the exploitation of coal, on the ground that he has been a legitimate holder of the right of management of land. Therefore, he should b

12、e a lawful holder of right to the coal mine under the land. On the other hand, the villagers refused to accept Mr Lees position and insisted that Mr Lees right to management of land would not extend to natural resources under the land. They held that the coal mine should be the common property of th

13、e villagers as a whole and they were entitled to dig coal. Since Mr Lee and the villagers could not reach a settlement themselves, they filed a lawsuit against each other before the court for the determination of right. Required: Answer the following questions in accordance with the relevant provisi

14、ons of the Property Law of China, and give reasons for your answer:（分数：9.99）(1).(a) describe what kind of property right Mr Lee has held regarding the mountain; (2 marks)（分数：3.33）_(2).(b) describe who should hold the ownership of the coal mine in the mountain; (4 marks)（分数：3.33）_(3).(c) state how th

15、e court should deal with the claim brought by Mr Lee for damages against villagers because some of the trees in the land were destroyed by villagers in digging coal. (4 marks)（分数：3.33）_Natural Gas Company (Gas Company) and Yaowa Glass Company (Yaowa Company) entered into a supply contract. The major

16、 terms and conditions of the contract were that Gas Company would provide a minimum 4,000 （分数：10.00）(1).(a) explain the legal nature of the deposit under the contract law, and state whether a claim for a refund of twice the amount of the deposit should be supported by the court; (4 marks)（分数：5.00）_(

17、2).(b) state whether a claim requiring specific performance of contract by Gas Company should be supported by the court where the Yaowa Company has already requested a refund of twice the amount of the deposit. (6 marks)（分数：5.00）_Kingmart Joint Stock Company (Kingmart Company) was a listed joint sto

18、ck company listing in Shanghai Securities Exchange, with total assets of RMB 500 million yuan; while Dahua Limited Liability Companys (Dahua Company) registered capital was RMB 160 million yuan. At the end of 2009 the board of directors of Kingmart Company adopted a special board of directors resolu

19、tion to merge with Dahua Company in a form of merger by absorption. After the completion of the merger plan Dahua Company would be dissolved. For the purpose of carrying forward the merger plan, Kingmart Company and Dahua Company should take some procedural steps before the merger plan could be impl

20、emented and settle the credit and/or debt of these two companies with other parties. Required: Answer the following questions in accordance with the relevant provisions of the Company Law, and give reasons for your answer:（分数：9.99）(1).(a) state the relevant voting requirement by the general sharehol

21、ders meeting; (3 marks)（分数：3.33）_(2).(b) state the relevant rules with respect to public notice; (3 marks)（分数：3.33）_(3).(c) state how to deal with Dahua Companys debts of RMB 500,000 yuan owed to a local electricity plant. (4 marks)（分数：3.33）_ACCA 考试 F4 公司法与商法（China）真题 2010 年 12 月答案解析(总分：99.96，做题时间：1

22、80 分钟)一、ALL TEN questions ar(总题数：10，分数：100.00)In relation to the Civil Procedure Law of China:（分数：10.00）(1).(a) explain the term exclusive jurisdiction; (2 marks)（分数：5.00）_正确答案：(In accordance with Article 34 of the Civil Procedures Law, exclusive jurisdiction refers to such a special territorial jur

23、isdiction under which the court of place shall have the exclusive jurisdiction over the cases, even if such jurisdiction is in conflict with the jurisdiction based on the rules of common territorial jurisdiction.)解析：(2).(b) state the major legal characteristics of exclusive jurisdiction, in terms of

24、: (i) the basis of exclusive jurisdiction; and (4 marks) (ii) the effect of the rule of exclusive jurisdiction. (4 marks)（分数：5.00）_正确答案：(i) Exclusive jurisdiction is a special rule of territorial jurisdiction. To determine the exclusive jurisdiction over a particular dispute it is necessary for a co

25、urt to find the relevant territorial factor involved in the case. Therefore the basis of the exclusive jurisdiction is same as that of the common territorial jurisdiction. (ii) Exclusive jurisdiction shall specially be prescribed by the law, and be strictly complied with both by the parties to the d

26、ispute and the courts hearing the case. It means that parties may not agree upon a jurisdiction in conflict with exclusive jurisdiction. Any choice of forum by parties against the rule of exclusive jurisdiction shall be null and void. On the other hand, any judgement based on the jurisdiction in vio

27、lation of the rule of exclusive jurisdiction may be refused to enforcement by the court in the place on which the exclusive jurisdiction is based.)解析：In relation to the Property Law of China: （分数：10.00）(1).(a) explain the term right of lien; (4 marks)（分数：5.00）_正确答案：(In accordance with Article 230 of

28、 the Property Law, right of lien refers to such a right where an obligor fails to pay off its debts due, the obligee may take lien of the movable that is owned by the obligor and lawfully in the obligees possession, and has the right to seek compensation in priority from such movable. Right of lien

29、is a statutory right that cannot be established by a contract between the parties concerned.)解析：(2).(b) state THREE conditions to be met for a party to claim the right of lien. (6 marks)（分数：5.00）_正确答案：(In accordance with Articles 231 of the Property Law, the following conditions shall be satisfied s

30、imultaneously where an obligee intends to claim the right of lien: (i) The obligee shall lawfully possess the movable of the obligor, such as the goods for transportation by a carrier or the equipment for repairing by a repairing plant. The immovable cannot be the subject matter of right of lien, ev

31、en though it may be lawfully possessed by a party. (ii) The movable taken as lien by the obligee and obligees right shall fall into a same legal relationship, except for the lien between enterprises. (iii) The obligor does not settle his debts due.)解析：In relation to the Labour Contract Law of China:

32、（分数：10.00）(1).(a) state the various powers of the labour administration in exercising its supervisory and examining functions; (2 marks)（分数：5.00）_正确答案：(In accordance with Article 75 of the Labour Contract Law, in exercising its supervisory and examining function, the labour administrations at county

33、 level or above shall have the authority to review any documents relating to labour contracts and collective labour contracts, and conduct an on-the-spot inspection of the work premises. Both the employer and the employees shall truthfully provide relevant information and materials.)解析：(2).(b) state

34、 any FOUR kinds of situations under which the labour administration may issue administrative orders to an employer for violations of Labour Contract Law. (8 marks)（分数：5.00）_正确答案：(In accordance with the provisions relating to the legal liabilities in the Labour Contract Law, the labour administration

35、 may issue administrative orders to an employer if it violates the law: (i) To order the employer to rectify the labour contract if an employer fails to incorporate the statutory provisions in the labour contracts or fails to provide the labour contracts to the employees; (ii) To order the employer

36、to return the identity cards to the employees within a specified period of time if the employer illegally detains the identity cards of the employees; (iii) To order the employer to pay wages or salaries if employer fails to pay an employee his or her wages or salaries in full and on time as agreed

37、in the labour contract or stipulated by the law; (iv) To order the employer to pay overtime payment if the employer arranges overtime without making overtime payment; (v) To order the employer to make up the shortfall if it fails to pay the labour compensation in conformity with the minimum wage as

38、stipulated by local government; (vi) To order the employer for rectification if the probation period stipulated by an employer violates the law; (vii) To order the employer to return the property to the employees within a specified period of time if it collect the property as security or under some

39、other guise; (viii) To order the employer to issue the certificates of dissolution or certificates of termination of labour contracts if the employer fails to issue such documents in violation of the law.)解析：In relation to the Contract Law of China:（分数：10.00）(1).(a) explain the term termination of c

40、ontract; (2 marks)（分数：5.00）_正确答案：(Termination of contract refers to such a situation where the rights and obligations arising out of a contract come to an end due to various statutory circumstances prescribed by the law or agreed upon by the parties to the contract.)解析：(2).(b) explain and distinguish between termination of contract and dissolution of contract. (8 marks)（分数：5.00）_正确答案：(In accordance with Articles 91, 93 and 94 of the Contra