10年博士入学考试-专业英语

第二部分 专业英语试题

Part I. Reading comprehension

Please choose from the items given under each question the best one as your answer. （2 marks for each question with a total of 40 marks）

Note：You should answer questions to 5 paragraphs only，one of which should be the paragraph corresponding to the major you are applying for and the other 4 paragraphs can be selected at your wile. Please cross out on your answer sheet the number of the questions corresponding to the one you choose not to answer. 每名考生最多回答5个段落下的选择题，其中必须有一个段落与考生所报专业对应，其余4个段落考生可以任选。请在你答题卡上划去你不回答的段落的相应题号。

I. (Legal History)

The term ―feudalism‖ was only invented in the 18th century. Prior to that time – every since the 12th century, in fact—people had spoken and written not of feudalism or ―feudal society‖ but of ―feudal law‖, ―referring primarily to the system of rights and obligations associated with lord-vassal relationship and dependent land tenures. During the 18th century Enlightenment, however, the entire social order in which such lord-vassal relationships and land tenures had once existed was for the first time called feudal society, and the chief characteristics of the society were defined as a privileged nobility and a subject peasantry. This definition is broad enough to include many aspects of 18th-century European society, as well. Eventually, the term feudalism came to be associated with an older phrase, dating from the time of the Reformation: ―the Middles Ages.‖ Feudalism was said to be that type of society which had existed in the West during the Middle Ages; more than that, it was said to be a type of society that had been existed in non-Western cultures as well, during the ―medieval‖ period of their history. This usage conceals an ethnocentric assumption that certain characteristics of Western social and economic history may also be taken to define the social-economic order of other societies. Moreover, many historians of the 19th and 20th centuries, by neglecting the belief system, the relations between ecclesiastical and secular authorities, and above all, the legal institutions and concepts that accompanied the feudal economies of the West, have given a distorted view of the dynamics of so-called feudalism, both in the West and elsewhere. The relationships between social and economic factors on the one side and political and ideological factors on the other side can be clarified by proceeding from the basis of four methodological postulates. First, legal institution should be seen to overlap the dividing line between social-economic factors and political-ideological factors. Second, an analysis should be made, not of feudalism but of the different kinds of law that regulated social and economic relations in the period under consideration, Third, a dynamic element is added to the study of Western feudalism by examining the changes took place in feudal and manorial law from the time of Papal Revolution. Fourth, it should be recognized that prior to the mid-eleventh century, lord-vassal

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relationships were not subject to systematic regulation.

Berman: Law and Revolution

36. From this paragraph, we can learn that ( )

(a) the term ―feudalism‖ has been used for more than 500 years. (b) feudal law is a legal system in the 18th century.

(c) the chief characteristics of the feudal society is privileged nobility and subject peasantry.

(d) Feudalism only existed in the West.

37. ―Feudal law‖, from the 12th to the 18th century, referred to ( ) (a) the legal system in the West. (b) 18th century Enlightenment. (c) the Middles Ages Reformation.

(d) the system of rights and obligations associated with privileged nobility and subject peasantry and dependent land-holding.

38. The underlined lines of the paragraph shows that the author ( ) (a) agrees with many historians of the 19th and 20th centuries.

(b) does not agree with many historians of the 19th and 20th centuries.

(c) thinks that certain characteristics of Western social and economic history may also be taken to define the social-economic order of other societies.

(d) the belief system, the relations between ecclesiastical and secular authorities, and above all, the legal institutions and concepts that accompanied the feudal economies of the West should be neglected.

39. In the last part of the paragraph, the author listed 4 ―methodological postulates‖. From the content of the 4 points, you think the word ―postulates‖ means ( ) (a) presumption (b) position (c) theory (d) argument

II. (Economic Law)

The more enthusiastic proponents of federal nonintervention contend that there is a great deal of convergence between state corporate law and shareholder wealth maximization. The reasoning is essentially as follows. States will compete by seeking to make their corporate law attractive to shareholders. States successful in attracting incorporations will be those that offer rules that maximize shareholder wealth; not doing so will put states at a competitive disadvantage. The same point has often been made by invoking the idea of the firm as a nexus of contracts. The decision of a corporation to select a particular state for its corporate law via its incorporation decision has been analogized to the selection of the terms of the contract that the corporation and its future public shareholders will enter into. The assumption that freely arrived at contract terms are optimal, pro-state competition scholars argue, should apply in this context as well. Those who take a company public will wish to have the company incorporated in a state with corporate law that is attractive to

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shareholders. States will therefore have an incentive to provide a body of corporate law, including takeover law, which is desirable from shareholders’ point of view. Despite this reasoning, most of those who argue that state competition works well also believe that state takeover law restricts takeovers excessively. They reconcile these beliefs by characterizing state takeover law as a fluke, an aberration, an imperfection in the competitive process. Delaware, they note, has a less draconian anti-takeover statute than other states, which they interpret as a sign that competitive pressures are at least somewhat working in favor of shareholders, albeit imperfectly. We are skeptical of this rationalization of what has happened. It is hard to regard the systematic adoption of takeover defenses as a fluke or an accident. Takeover defenses have been perhaps the most important issue in corporate law that the states have had to deal with in the last twenty-five years. It has been considered time and time again in state after state. And states across the board, including Delaware, have persistently imposed significant restrictions on takeovers. Accordingly, we favor the view, which we will now outline briefly, that states have powerful incentives to restrict takeovers excessively. There is an alternative view of state competition, which one of us has put forward in an earlier work, according to which there are several important corporate law areas in which state competition is likely to produce undesirable regulatory choices by the states.

Bedchuck & Ferrel: A New Approach to Takeover

Law and Regulatory Competition

40. The underlined lines of the paragraph tell us that ( )

(a) the more lenient a state’s corporate law, the more attractive it is to incorporators. (b) the stricter a state’s corporate law, the more attractive it is to incorporators.

(c) the more a state’s corporate law considers about shareholders’ interest, the more attractive it is to shareholders.

(d) the more a state’s corporate law considers about shareholders’ interest, the more attractive it is to incorporators.

41. In the sentence in italics, according to the author, what should be applied in this context? ( )

(a) the freely arrived at contract terms (b) the assumption (c) the context (d) pro-state competition scholars argue, should apply in this context as well

42. What does it mean by ―those who take a company public‖? ( ) (a) the ones who want to make a company listed

(b) the ones who want to bring a company to the public (c) the one who want to sell a company to the public (d) the ones who give the company to the public

43. What is NOT the factor that makes the authors favor the view that states have powerful incentives to restrict takeovers excessively? ( ) (a) the systematic adoption of takeover defenses by the states

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(b) States across the board have persistently imposed significant restrictions on takeovers.

(c) Takeover defenses is a fluke or an accident.

(d) Takeover defenses have been perhaps considered time and time again in state after state.

III. (International Law)

We find, accordingly, that the United States measure is applied in a manner which amounts to a means not just of \discrimination\but also of \discrimination\where the same conditions prevail, contrary to the requirements of the chapeau of Article XX. The measure, therefore, is not entitled to the justifying protection of Article XX of the GATT 1994. Having made this finding, it is not necessary for us to examine also whether the United States measure is applied in a manner that constitutes a \restriction on international trade%under the chapeau of Article XX. In reaching these conclusions, we wish to underscore what we have not decided in this appeal. We have not decided that the protection and preservation of the environment is of no significance to the Members of the WTO. Clearly, it is. We have not decided that the sovereign nations that are Members of the WTO cannot adopt effective measures to protect endangered species, such as sea turtles. Clearly, they can and should. And we have not decided that sovereign states should not act together bilaterally, plurilaterally or multilaterally, either within the WTO or in other international fora, to protect endangered species or to otherwise protect the environment. Clearly, they should and do. What we have decided in this appeal is simply this: although the measure of the United States in dispute in this appeal serves an environmental objective that is recognized as legitimate under paragraph (g) of Article XX of the GATT 1994, this measure has been applied by the United States in a manner which constitutes arbitrary and unjustifiable discrimination between Members of the WTO, contrary to the requirements of the chapeau of Article XX. For all of the specific reasons outlined in this Report, this measure does not qualify for the exemption that Article XX of the GATT 1994 affords to measures which serve certain recognized, legitimate environmental purposes but which, at the same time, are not applied in a manner that constitutes a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction on international trade. As we emphasized in United States – Gasoline, WTO Members are free to adopt their own policies aimed at protecting the environment as long as, in so doing, they fulfill their obligations and respect the rights of other Members under the WTO Agreement

Panel report: US-Shrimp WT/DS58/AB/R

44. The Appellate Body found that the US measure was not justifiable under GATT Article XX, because the measure was ( ) (a) applied in a special manner.

(b) between countries where the same conditions prevail. (c) both \‖ and \

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(d) not entitled to the justifying protection.

45. The Appellate Body underscored what they had not decided in the appeal. The reason for doing so is ( )

(a) that the protection and preservation of the environment is of great significance. (b) to clarify what the Appellate Body’s ruling really meant.

(c) that some members of the Appellate Body wanted to make such statement. (d) that the WTO Agreement required such statement.

46. What did the Appellate Body really decide in this case? ( )

(a) Protection and preservation of the environment is of no significance to the

Members of the WTO.

(b) Sovereign nations that are Members of the WTO can adopt effective measures to

protect endangered species.

(c) WTO Members should not act together either within the WTO or in other

international fora, to protect endangered species or to otherwise protect the environment.

(d) WTO Members can not apply their laws in a manner contrary to the requirements

of Article XX of GATT1994, even though their laws serve an environmental objective that is recognized as legitimate under paragraph (g) of Article XX of the GATT 1994.

47. ―WTO Members are free to adopt their own policies aimed at protecting the environment as long as, in so doing, they fulfill their obligations and respect the rights of other Members under the WTO Agreement‖. The phrase which can replace the underlined one is ( )

(a) so long as (b) in condition that (c) while (d) but

IV. (Criminal Law)

Suppose the victim owns a bicycle worth $75 to him. There are potential offenders who will steal the bicycle. Assume that there is a mix of high and low valuing offenders. One type of potential offender values the bike at $100, the other type of offender values the bike at $25. Suppose further, that if a theft occurs, the state will apprehend the offender at a cost of $10. The optimal penalty equates the offender’s liability with the marginal social harm of his conduct. Since the marginal social harm is the sum of victim’s loss and society’s enforcement cost, the optimal penalty is simply $85. Offenders who value the bicycle at $100 will continue to steal bicycles, while those who value the bicycle at $25 will be deterred. This is economically efficient, because high-valuing thieves produce a social dividend of $25 ($100 - $75) every time they steal a bicycle, so we don’t want to discourage them. The low-valuing thieves, however, produce only a social loss, so we do want to discourage them. The optimal penalty deters only the low-valuing thieves because it is designed to internalize the social harms due to theft. Now consider the case in which there are

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