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试题一（关于宪法中的隐私权与表达自由）
Following the limited success of his action in domestic law, Mosley petitioned the European Court of Human Rights, claiming a violation of articles 8 (the right to private life) and 13 (the right to an effective remedy), and seeking to establish whether the United Kingdom had a positive obligation under article 8 to protect Mosley by providing a legal duty on the News of the World to warn him in advance to allow him to seek an injunction.
The court dealt firstly with the questions whether the applicant was still a victim of any breach of article 8 and whether he had exhausted all effective domestic remedies before petitioning the Court. On the issue of whether he was a victim, despite receiving compensation in the High Court, the European Court held that no sum of money awarded after publication of information causing the applicant humiliation could provide a remedy for his specific complaint - that no legal requirement existed which obliged the media to give advance warning to an individual of a publication which related to their private life. Hence, the applicant was a victim under the Convention. For similar reasons the court held that the applicant had not failed to exhaust effective domestic remedies (under art 34 of the Convention) by failing to appeal on the issue of exemplary damages, or by pursuing a claim for an account of profits or under the Data Protection Act 1998 for destruction of the relevant data. In the court's view, none of those remedies could have addressed the applicant's specific complaint about the absence of a legal requirement of prior notification of the publication of the article which had interfered with his right to respect for his private life.
试题二（法学理论）
In the Middle Ages there was a twofold organization of paramount or legal social control, namely, state control and church control. The writers of the church took their ideas of law largely from the Greek philosophers and the Roman law books. They conceived that the state existed in order to maintain justice and so to maintain the law of God. The teachers of law in the medieval universities postulated an emperor over all Christendom in its temporal aspects as the pope was over its spiritual aspects. State and church were held co-workers in maintaining justice and realizing the law of God. In time, they became rivals for the paramountcy. But typically in the Middle Ages they were expected to work together as concurrent agencies of upholding the social and moral order. The so-called restoration of the empire under Charlemagne gave an ideal to
which men of the time recurred constantly in the quest of order and legal unity.
But the ideas derived from the Roman law books were not only in contact with ideas of fathers of the church, they came also in contact with ideas of the Germanic law. Thus the juristic thought of the time was a resultant. There were two ideas of law: (1) The Roman-Byzantine, academic idea of enacted law— the civil law as enactments of the emperor Justinian, and the canon law as enactments of the popes — and (2) the idea of law as authoritatively declared custom, the idea of the customs of the Germanic peoples, authoritatively ascertained and declared by reduction to writing iuxta
ex-emplum Romanorum.
试题三（法律史）
Historically, Chinese society preferred rule by moral suasion, rather than relying on codified law enforced by the courts. The teachings of Confucius1 have had an enduring effect on Chinese life and have provided the basis for the social order through much of the country's history. Confucians believed in the fundamental goodness of man and advocated adherence to li (propriety), a set of generally accepted social values or norms of
behaviour. Education was considered the most important means for maintaining order, and codes of law were intended only to supplement li, not to replace it.
Confucians held that codified law was inadequate to provide meaningful guidance for the entire panorama of human activity, but they were not against using laws to control the most unruly elements in the society. The first criminal code was promulgated sometime between 455 and 395 BC. There were also civil statutes, mostly concerned with land transactions.
Most legal professionals were not lawyers but generalists trained in philosophy and literature. The local, classically trained, Confucian gentry played a crucial role as arbiters and handled all but the most serious local disputes. This basic legal philosophy remained in effect for most of the imperial era. The criminal code was not comprehensive and often not written down, which left magistrates great flexibility during trials. The accused had no rights and relied on the mercy of the court; defendants were tortured to obtain confessions and often served long jail terms while awaiting trial. A court appearance, at minimum, resulted in loss of face, and the people were reluctant and afraid to use the courts. Rulers did little to make the courts more appealing, for if they stressed rule by law, they weakened their own moral influence.
试题四（民商法）
Article 5.2 of the Commercial Law allows the parties to choose foreign law in case one party is a foreign element. The language which allows the parties to choose foreign law is slightly different and clearer than art.759 of the Civil Code:
“Parties to a commercial transaction with a foreign element may agree to apply a foreign law or international practice, provided that such foreign law or international practice is not contrary to the basic principles of Vietnamese law.”
Although the language of the Commercial Law is much clearer, it is not perfect. What constitutes “the basic principles of Vietnamese law”? A commercial contract is subject to both the general “basic principles” as set out in Ch. II Pt One of the Civil Code, and the “basic principles” as they specifically apply to a commercial transaction as set out in the Commercial Law. Both Codes contemplate that the parties are equal in the transaction and have freedom to negotiate and agree to terms. In addition, the Civil Code refers to the principle of legal compliance in “establishment and execution of civil rights and performance of civil obligations”, while the Commercial Code refers to the principle of application of common commercial practices. However, the grounds to challenge application of foreign law as incompatible with the “basic principles” of Vietnamese law would likely be narrow.
附件：第三届初赛试题及选手信息表.doc
2012年6月18日
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