第一题：Possession <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" /> The physical control of a thing by a person is what is normally known as possession, and if the idea of possession had remained wedded to physical control, the position would have been simple enough. But the widening sphere of legal activity made it necessary to attribute to persons who were not actually in physical control some or all of the advantages enjoyed by persons who were. There are three possible situations at law: (a) A person can have physical control without legal possession, as in the case of a porter carrying a traveller's suitcase in a station. (b)A person can have possession and its advantages without actual physical control, e.g. a person may have books at home which are still in his possession even when he is away on holiday. (c) A person can have both physical control and possession, e.g. a watch in his pocket or a lien in his hand. Possession, therefore, has acquired a technical legal meaning, and the separation of possession from physical control has given the concept a high degree of flexibility. The old theory of possession, derived from the Roman Law, relies upon (a) corpus, i.e. physical control, and (b) animus, i.e. the intention to exclude others. But although these concepts help in deciding possession, they do not provide the complete answer. In fact, English law has never worked out a completely logical and exhaustive definition of possession. The handing over of a key may be sufficient by itself to pass the possession of the contents of a room or box if it provides the effective means of control over the goods.
第二题：Contract 1. Neither party to this agreement shall be liable to the other for any delay or failure in performance which is due to any cause outside its reasonable control or avoidance, including (without limitation) the any regulatory or Government organizations having jurisdiction over the affairs of either party which prevents the party from meeting its obligations under this agreement, acts of god, accident, riot, malicious acts of third parties, civil commotion, strike, lockout or industrial dispute by a third party, unavoidable power failure or fire (a “Force Majeure Event”). If performance of the obligations under this agreement is substantially prevented for a continuous period of one month or more by virtue of a Force Majeure Event, the party not being prevented from performing shall be entitled to terminate this Agreement upon written notice to the other party. 2. Any dispute, controversy or claim arising under, out of or in connection with this Agreement, including any question regarding its existence, validity or termination shall be referred to and finally resolved by arbitration in Beijing in accordance with the arbitration rules of the China International Economic and Trade Arbitration Commission (“CIETAC”) for the time being in force, which Rules are deemed to be incorporated by reference to this Clause. The arbitral tribunal shall consist of three arbitrators. The claimant or claimants (collectively) shall select one arbitrator and the respondent or respondents (collectively) in the arbitration proceeding shall select one arbitrator. The third arbitrator shall be appointed by mutual agreement of the respondent and claimants. If any of the members of the arbitral tribunal shall not have been appointed within thirty (30) days after any Party has delivered notice in writing to any other Party requesting arbitration, the relevant appointment shall be made by the CIETAC. The language of arbitration shall be English. The arbitral tribunal’s award shall be final and binding from the day it is made and enforceable in any court of competent jurisdiction. |
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