法律 APS 审核

法律 APS 审核 APS 审核准备 专业课 大三上:商法，行政诉讼法，经济法1(反垄断法，，商法专题(保险法)，国际私法，西方 法律思想史 大三下:知识产权法，国际经济法，法理学，经济法2，比较法，律师公证与仲裁，证 据学，环境保护法，法律英语，行政法 知识产权法: 词汇:Berne Convention伯尔尼公约, Paris convention巴黎公约, Trips(Agreement on Trade Related Aspects of Intellectual Property Rights)by world trade organization. Copyright:自动保护automatic prtection, 艺术作品 artworks, 假冒行为act of passing off, 剽窃 行为act of plagiarism, 改编adaptation, Patent:权利请求claims, 新颖性 novelty, 实用性practical applicability, 发明(products or method)invention, 外观设计industrial design, 实用新型utility model, Trademark: 商标淡化Dilution， 驰名商标well-known trademarks,商业秘密business secret, 注 册registration, 续展renewal, 核准注册approval of registration, 商标争议裁定申请application for adjudication on the disputed trademark 主要概念: Intellectual property (IP) is a term referring to a number of distinct types of creations of the mind for which property rights are recognized—and the corresponding fields of law. Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs. Common types of intellectual property include copyrights, trademarks, patents, industrial design rights and trade secrets in some jurisdictions. A trademark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or services from those of other entities. Copyright is a set of exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work. Copyright does not protect ideas, only their expression or fixation. A patent is a set of exclusive rights granted by a state (national government) to an inventor or their assignee for a limited period of time in exchange for a public disclosure of an invention. 专利三性: novelty, inventiveness and practical applicability. Novelty means that, before the date of filing,no identical invention orutility model has been publicly disclosed in publications in the countryor abroad or has been publicly used or made the public by anyother means in the country, nor has any otherperson filed known to previously withthe Patent Office an application which described the identical inventionor utility model and was published after the said dateof filing. Inventiveness means that, as compared with the technology existing beforethe date of filing the invention has prominent substantive featuresandrepresents a notable progress and that the utility model has substantivefeatures and represents progress. Practical applicability means that theinventionor utility model can be made or used and can produce effectiveresults. 伯尔尼公约(著作权)The Berne Convention requires its signatories to recognize the copyright of 1 works of authors from other signatory countries (known as members of the Berne Union) in the same way as it recognises the copyright of its own nationals. For example, French copyright law applies to anything published or performed in France, regardless of where it was originally created. 巴黎公约(工业产权)The Paris Convention for the Protection of Industrial Property, was one of the first intellectual property treaties. As a result of this treaty, intellectual property, including patents, of any contracting state are accessible to the nationals of other states party to the Convention.The "Convention priority right"(优先权), also called "Paris Convention priority right" or "Union priority right", was also established by this treaty. It provides that an applicant from one contracting State shall be able to use its first filing date (in one of the contracting State) as the effective filing date in another contracting State, provided that the applicant files another application within 6 months (for industrial designs and trademarks) or 12 months (for patents and utility models) from the first filing. Trips The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation as applied to nationals of other WTO Members. 案例:驰名商标的保护 Gome electrical products sales company VS Gome department store Cross-class protection of well-known trademarks，trips协议(最低)说类似商品使受 损See more: domain name 行政法 主要概念: Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. 主要框架: 行政法的基本原则:依法行政administration according to law，人权human rights protection， 信赖保护trust protection，公开公正公平Open, just, fair，正当程序due process 行政主体—行政机关，其他组织，公务员，行政相对人private party，行政法制监督主体 行政行为—抽象行政行为:行政立法及其他规范性文件 —具体行政行为—依申请行政行为:行政许可，行政给付，行政裁决，行政确认等 —依职权行政行为:行政命令，行政征收，行政处罚，行政强制等 行政行为成立(establishment)要件:行政权能存在，行政权的实际运用，法律效果(effect)的 存在，意思表示的存在 行政行为合法(the force of law)要件:主体合法，权限合法，内容合法，程序合法，形式合法 主要词汇: right to state one’s case 陈述权，right to defend oneself 申辩权，right of hearing 听证权，行 政机关administrative organ(state concil, the government of province), 法律、法规授权组织 organization authorized by law or regulations, 受委托组织organization entrusted by an administrative organ, 公务员public/civil servant, 行政法制监督主体supervision subject of administrative law 行政行为administrative act, 抽象abstract, 具体concrete/specific, 2 行政处理handling, 行政裁决administrative adjudication, 行政给付benefits, 行政确认 confirmed, 行政许可administrative license, 行政调解mediation, 行政处罚penalty, 行政强制 coercion, 行政命令 order, 行政征收 executive collection, 行政权executive power, 行政法主体administrative law subject, 意思表示expression of intention, 撤销invalidate, 变更modify/alter , 行政诉讼法 环境保护法 Environmental Law operates to regulate the interaction of humanity and the rest of the biophysical or natural environment, toward the purpose of reducing the impacts of human activity, both on the natural environment and on humanity itself. The topic may be divided into two major subjects: (1) pollution control and remediation, (2) resource conservation and management. 主要内容: 特征:综合性comprehensive, eg regulations and method 技术性technical, eg obey natural rules, lots of technologh standard, monitoring system to watch how much chemical things can be poured into the river. 社会性social,共同性common, environmental problems are global. we share the same atmosphare, and related land. Eg greenhouse effect influences the whole earth. 目的:Direct goal: Coordinate the relationship between people and the environment, protect and improve the environment. Ultimate goal: Protection of human health, protection of economic and social sustainable development. China has both. But Japan has only the first one. 体系:橄榄球Olives, civil law and criminal law—administrative law—multiple means(eg economical emissions trading) 基本原则:预防为主，防治结合stessing prevention while combining prevention with abatement; 3p原则Polluter-pays principle;公众参与原则public participation(hold hearings, vote for the new construction) 基本:规划制度land planning，环境影响评价制度Environmental Impact Assessment System，三同时Three simultaneous: During construction, pollution prevention and control measures must be designed with the main project, constructed and put into use at the same time with the main project.，许可证license，排污付费polluter pays，经济刺激economic stimulus 环境标准environmental standard 环境法律责任environmental legal liability 大气污染防治air pollution control: In the past, control the concentration of the emission, like carbondioxide and Sulfur dioxide—high chimney, but now control the amount of the emission. 国际经济法 WTO:The World Trade Organization (WTO) is an organization that intends to supervise and liberalize international trade. The organization officially commenced on January 1, 1995 under the Marrakech Agreement, replacing the General Agreement on Tariffs and Trade (GATT), which commenced in 1948. The organization deals with regulation of trade between participating countries; it provides a framework for negotiating and formalizing trade agreements, and a dispute resolution process aimed at enforcing participants' adherence to WTO agreements which are 3 signed by representatives of member governments and ratified by their parliaments. 联合国国际货物销售合同公约The United Nations Convention on Contracts for the International Sale of Goods(CISG) 适用条件between parties whose places of business are in different states, have to be contracting states. 卖方义务obligations of the seller:deliever the goods, hand over any documents relating to them and transfer the property in the goods. Hand over goods to the first carrier. 货物相符conformity of the goods, 权利担保rights guarentee--IP. 买方义务obligations of the buyer: pay, receive the goods. 仲裁Arbitration, a form of alternative dispute resolution (ADR), is a legal technique for the resolution of disputes outside the courts, wherein the parties to a dispute refer it to one or more persons (the "arbitrators", "arbiters" or "arbitral tribunal"), by whose decision (the "award") they agree to be bound. It is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides. 关键词汇: 贸易术语trade term/price term: FOB --free on board: means that the seller delivers when the goods pass the ship's rail at the named port of shipment. The buyer has to bear all costs and risks of loss of or damage to the goods from that point. The FOB term requires the seller to clear the goods for export. Buyer is responsible for all the costs incurred after the cargo has been LOADED on board. CFR --cost and freight: Seller must pay the costs and freight to bring the goods to the port of destination. However, risk is transferred to the buyer once the goods have crossed the ship's rail. Maritime transport only and Insurance for the goods is NOT included. Insurance is at the Cost of the Buyer. CIF --cost, insurance and fright: Exactly the same as CFR except that the seller must in addition procure and pay for insurance for the buyer. Maritime transport only; DAF – Delivered At Frontier: when the goods are transported by rail and road. The seller pays for transportation to the named place of delivery at the frontier. The buyer arranges for customs clearance and pays for transportation from the frontier to his factory. The passing of risk occurs at the frontier. 保险术语:一切险all risks: covers a wide-range of incidents and perils, except those noted in the policy. 平安险FPA free from particular average; 水渍险W.A./W.P.A.with average or with particular average, 战争险war risk, 支付手段:汇付remittance, remitter(importer)—bank(ex)—bank(im)—payee(exporter) 托收collection,exporter—(bills)collecting bank—(bills)bank(im)—importer—pay 信用证letter of credit:after a contract is concluded between buyer and seller,buyer’s bank supplies a letter of credit to seller.seller consigns the goods to a carrier in exchange for a bill of landing.Seller use bill of lading for payment from buyer’s bank.Buyer’s bank exchanges bill of lading for payment from the buyer.Buyer provides bill of lading to carrier and takes delivery of goods. 贸易组织:WTO, 欧洲自由贸易联盟EFTA european free trade association, 北美自由贸易区 North American Free trade area, 关贸总协定GATT general agreement on tariffs and trande. 4 词汇:全部损失total loss, 部分损失partial loss, 运费freight, 关税customs duty, 倾销duming, 反倾销antidumping, 贸易顺差逆差un/favorable balance of trade, 关税壁垒tariff barrier, 技术 性贸易壁垒technical barriers to trade, 提单bill of lading, 托运单shipping order, 背 endorsed，买房buyer, 卖方seller, 承运人carrier, 收货人consignee, 客户customer, 海牙The Hague 国际私法 *Conflict of laws (or private international law) is a set of procedural rules which determine which legal system, and the law of which jurisdiction, applies to a given dispute. The rules typically apply when a legal dispute has a "foreign" element such as a contract agreed by parties located in different countries. *The three branches of conflict of laws are Jurisdiction – whether the forum court has the power to resolve the dispute at hand Choice of law – the law which is being applied to resolve the dispute Foreign judgements – the ability to recognise and enforce a judgement from an external forum within the jurisdiction of the adjudicating forum *词汇:动产movable property, 不动产real estate, 冲突法conficts of law, 准据法(冲突法援 引出的实体法)governing law，实体法substantive law, 程序法procedural law, 援引cited, 意 思自治原则Principle of Autonomy，最密切联系原则The principle of closest connection， 国 际条约international treaties, 国际惯例international practice, 诚实信用原则The principle of good faith, 仲裁arbitration, 国际商会International Chamber of Commerce，公共秩序保留 Reservation of public order，遗产继承inheritance, 遗嘱will, 我国《海商法》也基本上采纳了上述世界海事立法的一般做法，即对于公海上船舶碰撞的法 律适用，在相同国籍船舶碰撞时采用共同船籍国法主义;在不同国籍船舶碰撞时采用法院地 法主义。 国际贸易和国际司法Example, international contract is signed between American company and Chinese company. These two countries are both the members of CISG. If they have disputes, there will be 4 different cases in dealing it. One, if they have already signed disputes settlement in the contract. They have to obey the provision. Usually the contract will say the dispute is solved under the Chinese law or the law of a state in USA. Or settled by arbitration, maybe the case will be subimmited to ICC. If they haven’t assigned this provision, the CISG is automatically applied. If they haven’t assigned one, and exclude the application of the convention, and one of the parties brings a lawsuit, the case will be heared by the court who has jurisdiction. The court will make decisions first according to the conficts of law, the determin the governing law, and obey it. 经济法 反不正当竞争法Anti-Unfair Competition Law 反不正当竞争行为:假冒fake,擅自使用unauthorized use,虚假宣传false advertising,商业秘密 trade secrets,有奖销售fake sales awards 反垄断法Antitrust Law/Competition law: is the body of laws that prohibits anti-competitive behavior (monopoly) and unfair business practices. 5 垄断monopoly:when a specific individual or an enterprise has sufficient control over a particular product or service to determine significantly the terms on which other individuals shall have access to it. 垄断行为(一)经营者达成垄断协议monopolistic agreements among business operators:between operators—fixed price,part market;between operator and his partner—fixed price to the third person (二)经营者滥用市场支配地位Abuse of dominant market position:sell at high price,buy at low price (三)具有或者可能具有排除、限制竞争效果的经营者集中has or may have to eliminate or restrict competition, concentration of undertakings:merger, equity(stock). 消费者权益保护法 消费者权益:人身和财产安全security of person and property/安全保障权safety protection, 知 情权right to know, the right to choose, fair trade, claim, the right to association, respect. 产品质量法 税法 流转税turnover tax--增值税VATvalued-added tax: a tax on the estimated market value added to a product or material at each stage of its manufacture or distribution, ultimately passed on to the consumer. 营业税business tax/sales tax: Provision of taxable services, transferring intangible assets or sale of real estate, units or individuals, which they obtained a tax levied on the turnover. 消费税comsuption tax,e.g. luxuary, jewery, disposable chopsticks, 所得税income tax: a tax levied on the income of individuals or businesses (corporations or other legal entities) 词汇: 市场份额market share(1/2), 财力和技术条件Financial and technical conditions, 依赖程度 dependance, 营利性组织For-profit organization, 消费者协会Consumers Association, 固定资 产fixed assets, 居民纳税人Resident taxpayers 法理学Jurisprudence The theory and philosophy of law. "What is law?", normative or "evaluative" theories of law. ―What is the goal or purpose of law?‖ *Natural law is the idea that there are rational objective limits to the power of legislative rulers. The foundations of law are accessible through human reason and it is from these laws of nature that human created laws gain whatever force they have. *Analytic, or 'clarificatory' jurisprudence is using a neutral point of view and descriptive language when referring to the aspects of legal systems. This was a philosophical development that rejected natural law's fusing of what law is and what it ought to be. *Legal Positivism, by contrast to natural law, holds that there is no necessary connection between law and morality and that the force of law comes from some basic social facts although positivists differ on what those facts are. *Civil law (or civilian law) is a legal system inspired by Roman law, the primary feature of which is that laws are written into a collection, codified, and not (as in common law) determined by 6 judges. *Common law, also known as case law, is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action. A "common law system" is a legal system that gives great precedential weight to common law,[1] on the principle that it is unfair to treat similar facts differently on different occasions. *Public law is a theory of law governing the relationship between individuals (citizens, companies) and the state. Under this theory, constitutional law, administrative law and criminal law are sub-divisions of public law. *Private law (Civil law) is that part of a legal system that involves relationships between individuals. This includes the law of contracts or torts and the law of obligations. *Substantive law is the statutory or written law that governs rights and obligations of those who are subject to it. *Procedural law comprises the rules by which a court hears and determines what happens in civil or criminal proceedings. Procedural law deals with the method and means by which substantive law is made and administered. 民法和物权法 物权real right: the exclusive right of direct control over a specific res enjoyed by the holder in accordance with law.Two levels: direct control, use in any ways; exclusive, forbid anybody else to use it, or have right on it, or obstruct. In the civil law system, there is a division between movable and immovable property. Movable property roughly corresponds to personal property, while immovable property corresponds to real estate or real property, and the associated rights and obligations thereon. 物权的类型: 所有权ownership, 居住用地,,年;工业用地,,年;商业用地,,年;综合用地,,年。 用益物权usufractuary right: Usufruct is the legal right to use and derive profit or benefit from property that belongs to another person, as long as the property is not damaged.E.g. Construction land use rights. 担保物权real rights for security:Usually related with debt. E.g. When the debtor can’t pay back his debt, the property which security is set on, will be sold to clear the debt. The creditor has the 抵押权mortgage over this property. a mortgage in itself is not a debt, it is the lender's security for a debt.留置权Lien,e.g. chairs seller can hold chairs until buyer pays.质权pledge,for movable property, the right’s owner have to possess this property. 侵权责任形式:恢复原状recovery/Restitution,e.g.give back, repair,Eliminate dangerous, Removal of obstacles.损害赔偿compensation.apology. 无因管理gestio:conducting of another person's affairs without their authorisation. 词汇: 三段论Syllogism大前提Syllogism小前提Minor premise结论conclusion, 法律关系legal relationship, 法律事实legal facts, 产生变更消灭establish,change or terminate,民法通则 general principles of the civil law, 民事权益civil rights and interests, 财产关系和人身关系 property relationships and personal relationships, 诚实信用honesty and credibility, 民事权利能 力 (limited/no)the capacity for civil rights, 建筑物区分所有权Building Ownership，善意 7 goodwill,公证notarization, 公证文件notarized, 侵权法 Tort is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from criminal wrongdoing which involves a breach of a duty owed to society, and also does not include breach of contract. Negligence Torts, and Intentional Torts 词汇: 理性人a reasonable person，因果关系Causality， 刑法 追诉时效limitation of prosecution,故意犯罪intentional crime,过失犯罪negligent crime,犯罪主 体subject of a crime,犯罪客体object of a crime,犯罪主观方面subjective elements of a crime,犯 罪的客观方面objective elements of a crime,犯罪故意criminal intent, 犯罪对象 target of a crime,犯罪故意 criminal intent; mens rea,直接故意 actual intent; direct intent,间接故意 indirect intent,犯罪过失 criminal negligence,疏忽大意的过失 careless negligence,过于自信的 过失 negligence with undue assumption,不能预见 unforeseeable; unpredictable,不能避免 unavoidable,犯罪动机 criminal motive,犯罪目的 criminal intent; criminal purpose,防卫过当 unjustifiable self-defense,紧急避险 act of rescue; necessity,犯罪既遂 completion of a crime,犯 罪未遂 attempted crime,犯罪形态 criminal pattern,犯罪预备 a crime in preparation; preparation for a crime,犯意表示 expression for a crime,犯罪中止 abandonment/discontinuance of a crime,犯罪中断 suspension of a crime,行为犯 behavioral offence,危险犯 potential damage offence,结果犯 consequential offence,结果加重犯 aggregated consequential offence,类推 legaltranz.com analogy,定罪 conviction; crimination,定罪情节 circumstances for adjudgment,定 罪量刑 punishment fits the crime,量刑情节 principle of discretionary action of sentencing; principal of sentencing,危害行为 dangerous act,因果关系 causative relation,共同犯罪 complicity; joint offence,教唆犯 abettor,主犯 principal,从犯 accessory,胁从犯 accomplice under duress; unwilling follower,帮助犯 aider; accessory,累犯 recidivist; repeat offence,一般累 犯 common recidivist,法人犯罪 corporate crime,结伙犯罪 gang crime,集团犯罪 organized crime,经济犯罪 economic crime,职务犯罪 duty crime; crime by taking advantage of duty,聚众 犯罪 assembled a crowd to commit a crime,一罪 one crime,一罪不二罚 nemo bis punitur pro eodem delicto; no one is punished twice for the same crime,继续犯 continuous crime,持续犯 continuous crime,想象竟合犯 imaginative joinder of offences,惯犯 habitual offence,结合犯 combinative crime; integrated offence,连续犯 continuing offence,牵连犯 implicated offence,吸 收犯 Inclusive offence; absorbable offence,数罪 plural crimes,数罪并罚 joinder of punishment for plural crimes,法定最高刑 maximum statutory penalty,法定最低刑 minimum statutory penalty,总和刑期 total term of sentences,并科原则 doctrine of cumulation of punishments,相加 原则 doctrine of accumulation,合并原则 doctrine of joinder,累加原则 cumulative principle,吸 收原则 absorption principle,限制加重原则 principle of limitative aggravation,折衷原则 doctrine of compromise,两罚制 dual/double punishment,单罚制 single punishment,漏罪 omitted crime,先并后减 reduction after combined sentence,新罪 newly committed crime,先减 后并 combination of sentence after reduction,刑罚个别化原则 principle of individualization of punishment,刑罚经济原则 principle of economization of punishment,刑罚人道主义原则 principle of humanitarianism of punishment,刑罚效益原则 principle of utility of punishment,刑 8 罚的种类 classification of criminal pennalties,生命刑 punishment depriving life,财产刑 punishment against property,权利刑 punishment of depriving rights,主刑 principal penalties,管制 public surveillance,拘役 penal servitude,有期徒刑 fixed-term imprisonment,无期徒刑 life imprisonment,死刑 death penalty,死缓 death sentence with a two-year reprieve,附加刑 accessory penalties,剥夺政治权利 deprivation of political right,没收财产 forfeiture of property,罚金 criminal fine，驱逐出境 renvoi,量刑 sentencing,犯罪事实 criminal fact,犯罪性质 criminal character,犯罪情节 criminal circumstances of crime,情节严重 grave/serious circumstances,情节特别严重 circumstances are particularly serious,情节恶劣 circumstances are wicked,后果特别严重 with particularly serious consequence,量刑情节 circumstance for sentencing,法定情节 statutory circumstances,从轻处罚 lighter punishment,减轻处罚 mitigation of penalty below minimum statutory prescript,从重处罚 heavier punishment,加重处罚 aggravation of penalty below minimum statutory prescript,免予处罚 exemption from punishment,酌定情节 discretionary circumstances,自首 surrender oneself to justice,坦白 confession of one’s offence,自动投案 voluntary surrender to justice,立功 metitorious serviceoffset立功赎罪,假释 one’s guilt by merit,假释考验期 probation period for parole,减刑 commutation; mitigation of punishment,减刑建议书 advisory letter of commutation,赦免 legaltranz.com pardon,大赦 amnesty; general pardon,特赦 special pardon,追诉时效 limitation of prosecution,追诉期限 deadline of prosecution,预防犯罪 prevention of crime,缓刑probation; reprieve,缓刑宣告制 system of suspended pronouncement of sentence,缓刑起诉制 system of suspended prosecution,缓刑考验期 probation period,行刑 execution; executing punishment,监外执行 execution of sentence outside prison yet under surveillance, 9