Exam Paper 3

1. Single-choice questions, each question has only one correct answer among the options given. There are 1-50 questions in this section, each question is worth 1 point, and the total score is 50 points.

1. Answer: D Test point: Civil law principles? Analysis: Article 4 of the "General Principles of Civil Law" stipulates: "Civil activities shall follow the principles of voluntary fairness, equal compensation, and good faith." Among them, good faith The principle means that when civil subjects conduct civil activities, they should be honest, not cheat, not cheat, not harm the interests of others and social interests, and properly exercise their rights and perform their obligations. A sells a bungalow to C without informing B of the fact that a high-rise building will be built, which violates the principle of good faith.

2. Answer: B? Test point: Right to form

Analysis: The right to form is a right that becomes legally effective based on the unilateral expression of the right holder. Sun’s act of consent is an exercise The right of ratification is a type of right of formation.

3. Answer: A? Test point: Residence

Analysis: Article 9 of the "Mintong Opinions" stipulates: "The last place where a citizen has lived continuously for more than one year after leaving his place of residence is Regular residence. Except for those who are hospitalized for medical treatment. If a citizen does not have a regular residence after moving from his place of residence to another place, his place of residence shall still be his residence." Therefore, option A should be selected for this question. The remaining options are incorrect.

4. Answer: B? Test point: Cancellation of declaration of death

Analysis: Article 37 of the "Mintong Opinions" stipulates: "The marital relationship between the person who was declared dead and his spouse, If the death declaration is revoked by the people's court and the spouse has not remarried, the relationship between the couple will be restored automatically from the date of the death declaration; if the spouse remarries and then divorces or the spouse dies after the remarriage. , it shall not be deemed that the relationship between husband and wife has been restored on its own. "According to this article, the marriage between B and C is valid and the court should confirm it.

5. Answer: D? Test point: Responsibility of legal persons

Analysis: Article 58 of the "Mintong Opinions" stipulates: "The legal representative and other staff of an enterprise legal person, If business activities conducted in the name of a legal person cause economic losses to others, the corporate legal person shall bear civil liability. "The office in question is only a branch of a company in Qingdao and has no independent liability capacity. Wang's driving caused damage to others. The company should be held liable for damages.

6. Answer: D Test point: Object

Analysis: We should pay attention to the fact that currency is a special object. Its speciality lies in the fact that when the right of possession is transferred, the ownership is transferred. Therefore, in lending, what is transferred is the ownership of the currency rather than the right to use it. A's statement is wrong. Securities are written certificates that establish and prove property rights. Although movie tickets can prove that the customer has entered into a contract with the studio, they cannot be said to be a written certificate that establishes property rights. The same situation applies to air tickets, etc. They are only evidence of contracts, not securities. B's statement is incorrect. To judge the relationship between the main object and the accessory, we must remember the two basic characteristics of the accessory: "a component that is not the main object and contributes to the utility of the main object". Generally speaking, mineral deposits are regarded as part of the land. Therefore, It cannot be said that mineral deposits are an accessory of the land. As for the distinction between the original thing and the fruits, there are two standards: the fruits have become an independent thing; the fruits are the things produced by the original things.

7. Answer: C? Test point: Invalid civil act

Analysis: In this question, Sun was coerced by Qiu and was afraid, and because of fear, he carried out the civil act of issuing an IOU. According to the provisions of Article 58, paragraph 1, item (3) of the General Principles of Civil Law, civil acts under duress are invalid civil acts, so item C is selected. It should be noted that the provisions of Article 52 of the Contract Law should not apply to this question. Although Article 52 of the Contract Law has amended the provisions of Article 58 of the General Principles of Civil Law to a certain extent, in addition to contracts, civil legal acts also include agency, unilateral legal acts, marriage, wills and other forms. In other words, after the "Contract Law" is passed, the provisions of Article 58 of the "General Principles of Civil Law" will still be valid outside the scope of contract validity. The questions and options in this question only concern the validity of civil acts and have nothing to do with contracts, so the provisions of Article 58 of the General Principles of the Civil Law should still apply.

8. Answer: A? Test point: Effectiveness of agency behavior

Analysis: Article 63 of the "General Principles of Civil Law" stipulates: "Citizens and legal persons may perform civil legal acts through agents.

The agent performs civil legal acts in the name of the principal within the scope of agency authority. The principal shall bear civil liability for the agent's acts of agency. In accordance with legal provisions or in accordance with the agreement of both parties, civil legal acts that should be performed by the person himself shall not be represented by an agent. "In this case, Wang purchased audio-visual equipment in the name of Lixin School. This act is an agency act. Therefore, the lottery tickets and the TV set earned from winning the prize should belong to Lixin School.

9. Answer: C? Test point : Interruption of the statute of limitations

Analysis: Article 140 of the "General Principles of Civil Law" stipulates: "The statute of limitations is interrupted by the filing of a lawsuit, a request by one of the parties, or an agreement to perform an obligation. From the time of interruption, the statute of limitations period is recalculated. "In this case, Liu Wen wrote a reminder letter to Li Yu and made a demand for repayment. Because Li Yu received this letter on February 10, it means that he already knew Li Wen's demand for repayment, and the lawsuit should be filed at this time Interrupted.

10. Answer: C Test point: Liability for the same infringement

Analysis: This question involves the liability for the same infringement according to the "General Principles of Civil Law". Article 130 stipulates that if two or more persons jointly infringe and cause damage to another person, they shall bear joint and several liability. Any one of B, C, and D may claim compensation, or any two or three of the three may claim compensation. In this question, regarding the creditor-debt relationship formed by infringement, A and B and C reach an agreement. The agreement between A and B and C should be respected, and it should not prevent A from requiring *** and the infringer D to bear the remaining liability for compensation.

11. Answer: A Test point: The building causes damage to people. Analysis: Article 126 of the General Principles of the Civil Law stipulates: If a building or other facility, or any objects placed or suspended on the building collapses, falls off, or falls and causes damage to others, its ownership shall The owner or manager shall bear civil liability, except those who can prove that they are not at fault. Therefore, the tort of causing damage to people by a building only uses the principle of presumption of fault, that is, once the consequences of damage to people by a building occur, it is presumed that the owner is responsible. The owner or manager is at fault, unless the owner or manager provides evidence to prove that he is not at fault.

12. Answer: B Test point: Compensation for mental damages

Analysis: A has the following in this question. The commemorative video tape was destroyed, and the compensation request belongs to mental damage compensation. Regarding mental damage compensation, the more important judicial interpretation is the "Interpretation of the People's Court on Several Issues Concerning the Determination of Liability for Mental Damage in Civil Torts", and candidates should pay attention to it. Article 4 of it stipulates: “If a specific commemorative item with symbolic personal significance is permanently lost or damaged due to infringement, and the owner of the item files a lawsuit in the People’s Court for compensation for mental damage on the grounds of infringement, the People’s Court shall accept the case in accordance with the law. . "It can be seen that compensation for mental damages can only be requested in a tort lawsuit. This provision of this interpretation is in line with the concept of civil law. Because the purpose of the system of lawsuits for breach of contract is to relieve the property rights of the parties, compensation for mental damages is not suitable for breach of contract. This is also the current common practice in the civil law circles. Examination options can directly exclude item A.D. In this question, A can certainly claim that the ownership of the videotape has been infringed upon when the videotape is damaged. File an infringement lawsuit against B. Therefore, item C is wrong and item B is correct.

13. Answer: D Test point: Privacy rights

Analysis: This question involves the protection and publicity of privacy rights. The issue of balance in the exercise of political power. The right to privacy is a private right, and the protection of privacy rights often conflicts with the exercise of public rights such as judicial power, prosecutorial power, administrative penalty power, freedom of speech, and supervision rights. In this regard, , if it is a correct exercise of public authority to disclose the privacy of others, it does not violate the privacy rights of others. In this question, a university punishes disciplinary students and communicates the punishment decision to the relevant units of the school, which is an exercise of educational management rights. A legitimate act does not constitute an infringement.

14. Answer: D Test point: Copyright ownership of commissioned works

Analysis: Article 17 of the "Copyright Law" stipulates: "Commissioned creations." For a work, the ownership of the copyright is agreed upon by the client and the trustee through a contract. If there is no express agreement in the contract or no contract has been concluded, the copyright belongs to the trustee. "In the question, A and B have not entered into a contract, and there is no explicit agreement, so the copyright belongs to trustee B.

15. Answer: C Test point: The connotation of "author"

Analysis: According to Article 11 of the "Copyright Law", copyright belongs to the author, unless otherwise provided in this law. The citizen who created the work is the author. The so-called creation refers to the act of forming a certain work through one's own intellectual activities. Therefore, the coordinator and host of a certain topic, or the person who creates, reviews, writes, and discusses with the creator for others cannot be regarded as the author, because their Behavior does not constitute creation, so the A.B.D options should be excluded. Please refer to the provisions of Article 3 of the "Copyright Law Implementation Regulations". In option C, although Professor A has modified two chapters written by Professor Ding, Professor Ding’s writing still constitutes creation, so he should be listed as one of the authors of this book. This question should be option C.

16. Answer: D Test point: Behavior that is not considered patent infringement

Analysis: Article 63, paragraph 1, of the Patent Law stipulates that if one of the following circumstances occurs, It is deemed to be an infringement of patent rights: (1) After the patentee manufactures or manufactures or imports a patented product with the permission of the patentee or a product obtained directly according to the patented method, the product is used, offered for sale or sold; ( 2) The same product has been manufactured, the same method has been used, or the necessary preparations for manufacture and use have been made before the patent application date, and the manufacture and use will only continue within the original scope; (3) The product has temporarily passed through the territory, territorial waters, and airspace of China Foreign means of transport use relevant patents in their devices and equipment for the needs of the means of transport in accordance with the agreement signed by the country to which it belongs and China or the international treaty to which China is a party, or in accordance with the principle of reciprocity; (4) Use relevant patents for scientific research and experiments.

17. Answer: D Test point: Principles of trademark registration application

Analysis: According to the provisions of Article 29 of the "Trademark Law", two or more trademark registration applications If a person applies for registration of an identical or similar trademark on the same kind of goods or similar goods, the trademark applied for earlier will be preliminarily reviewed and announced; if the application is made on the same day, the trademark previously used will be preliminarily reviewed and reviewed, and the trademark filed by others will be rejected. Application will not be announced. It can be seen that my country’s trademark registration applications adopt the first-to-file principle, and the date of trademark registration application shall be the date when the Trademark Office receives the application documents. In this question, Lida Company applied first.

18. Answer: D? Test point: Elimination of property rights

Analysis: Abandonment is a unilateral legal act with the purpose of eradicating property rights. Abandonment becomes effective as soon as the right holder expresses his intention. The intention to abandon does not necessarily have to be directed to a specific person. As long as the right holder abandons his possession, the intention to abandon it will have the effect of abandonment. A throws away the 3,000-yuan treasury bill unintentionally, not out of his true intention. The abandonment has no effect. A still owns the ownership of the 3,000-yuan treasury bill, and B should return it.

19. Answer: B.C.D Test point: Differentiated ownership of buildings

Analysis: The content of differentiated ownership of buildings includes exclusive partial ownership, exclusive partial ownership rights and Membership rights. The roof of a unit building belongs to the exclusive use of the entire subdivision owner, and individual subdivision owners have no right to dispose of it. Although Zhang A is the owner of a unit on the roof of the building, that is, a separate owner, the ownership of the roof of the building does not belong to Zhang A alone. Zhang A has no right to allow Company B to use the roof alone, and his behavior is a disposition without authority. The validity of the signed contract is yet to be determined. Distinguish the owner's use of the portion and have the right to share the income generated according to a certain proportion. Therefore, item A is wrong and item B.C.D is correct, which is consistent with the meaning of the question.

20. Answer: C Test point: Right of first refusal

Analysis: Article 78 of the "General Principles of the Civil Law" stipulates: "Property may be owned by more than two citizens or legal persons." . *** is divided into *** and *** share. According to their respective shares, people share property rights and share obligations to ***. ***Some people have rights and obligations to *** property. Each *** person who owns property in shares has the right to request that his or her share be divided or transferred. However, at the time of sale, other *** people have rights. *Under the same conditions, someone has the right to purchase first. Therefore, B in this question has the right to purchase first. Article 230 of the Contract Law stipulates: “If the lessor sells the leased house, it shall notify the lessee within a reasonable period of time before selling. The lessee shall have the first right to purchase under the same conditions.

"From the perspective of legislative intent, the reason why the law stipulates the right of preemption for house lessees is to protect the interests of the lessee who actually uses the house. Therefore, D, who actually rents the house, and house lessee C should have the right of preemption. . Therefore, the answer to this question is C.

21. Answer: B Test point: Right of residence

Analysis: The right of residence is a kind of human right in traditional civil law, for the benefit of a specific person. In theory, it is generally believed that the right of residence is the right of a specific person to use other people's houses for living. Under normal circumstances, the holder of the right of residence is not allowed to rent out the house, but if the holder of the right of residence is very poor, he can be allowed to live there. The house is rented out within the right period, which is the case in Oriole in this question. Therefore, item B is incorrect and is in line with the purpose of the question, while item A.C.D is correct and is not in line with the purpose of the question.

22. Answer: Test point B. : Guarantee Liability of Mixed Funds and Same Guarantees

Analysis: When facing this question, candidates should first realize that what is being tested is mixed funds and same guarantees. The so-called mixed funds and same guarantees refer to the same claim. , there is both a guarantee and a mortgage or pledge guarantee. According to Article 28 of the Guarantee Law: “If the same creditor’s right has both a guarantee and a physical guarantee, the guarantor shall bear the guarantee liability for the creditor’s rights other than the physical guarantee. "Then C, as the guarantor in this question, only bears guarantee liability for claims other than the guarantee of the property. The guaranteed value of the property is 160,000 yuan, so C only bears the guarantee liability of 40,000 yuan. This is a preliminary analysis of the question. But , the situation changed again during the guarantee period, that is, the car used as collateral was damaged, and only 30,000 yuan of insurance compensation was obtained. At this time, the mortgage right was transferred to its subrogation, and the 30,000 yuan compensation was thus guaranteed. The value range has been reduced from the original 160,000 yuan to 140,000 yuan. In this case, Article 38, paragraph 2, of the "Interpretation of the Guarantee Law" stipulates: "If the same claim has both a guarantee and a physical guarantee, the physical guarantee shall be If the guarantee contract is confirmed to be invalid or revoked, or the collateral is lost due to force majeure and there is no subrogation, the guarantor shall still bear the guarantee liability in accordance with the contract or the provisions of the law. "That is, in this case, the guarantor needs to bear a correspondingly reduced guarantee liability, so the guarantee liability borne by C at this time should be 60,000 yuan. Item B is correct.

23. Answer: B Test points: mortgage, Effectiveness of the Pledge Contract

Analysis: (1) Article 41 of the "Security Law" stipulates: "If the party pledges the property specified in Article 42 of this Law, it shall register the mortgage. The mortgage contract shall be registered from the date of registration." Effective from date. "In this case, C's house is property stipulated in Article 42 (2) of the "Security Law", so the mortgage contract using this property as collateral must be registered to be valid. Therefore, the mortgage in this question is invalid. (2) Paragraph 2 of Article 64 of the Guarantee Law stipulates: “The pledge contract shall take effect when the pledged property is handed over to the pledgee. "Pledgee B in this question does not possess the pledged property, so the pledge in this question is also invalid. (3) In summary, option B is correct.

24. Answer: Test point A: Sale and purchase with retention of ownership, establishment and realization of mortgage right

Analysis: The ancient painting has been sold to Wen Fangyi, and the mortgage right was established after the sale. Although the retention of ownership agreement was agreed, Wen has the right to the ancient painting The right to acquire ownership takes precedence over the later-established mortgage. Sun's behavior shows that he recognized the rights enjoyed by Wen in the ancient painting. After Wen paid the price, he obtained the ownership of the ancient painting. Item A is correct because Sun has no right to realize it. Mortgage right. Item C is wrong because the mortgage is valid. Item D is wrong because Jiao has not defaulted.

25. Answer: B Test point: Classification of debts

Analysis: Specific. The debt refers to the debt that the debtor should pay specific subject matter or provide specific services or rights. In this question, the debt owed by the "Blackbeard" four-member singing group is to perform self-composed songs, but the subject matter of the contract is not specified. , so it is not a specific debt. Therefore, item A is wrong. A single debt refers to a debt in which both the creditor and the debtor are only one person. In this question, the "Blackbeard" singing group is the subject of the contract. On the surface, there are four persons, but in fact it is a single entity to the outside world, so it is a single debt. Therefore, option B is correct. In accordance with legal provisions or the agreement of the parties, the performance or subject matter of the debt can be selected by one party. Debt. Statutory debt refers to debt arising from legal provisions. Obviously, this question does not involve a debt of choice, nor is it a statutory debt, so the answer to this question is B.

26. Answer: C Test point: Proper performance of debts

Analysis: The performance of debts should abide by the principle of proper performance, that is, the parties should fully and correctly comply with the provisions of the law or the provisions of the contract. Fulfill debts. Option A A should be jointly and severally liable for compensation, so he should meet all the creditors' requirements; Option B Wang's calligraphy and painting is a personal act, and performance on his behalf is invalid and a violation of the contract; Option D Zhang is under 18 years old , does not have agency qualifications. In summary, option C should be selected for this question.

27. Answer: A Test point: The legal obligations and responsibilities of directors, supervisors, and managers towards the company

Analysis: According to the provisions of Article 149 of the "Company Law", directors, company senior officers Managers shall not engage in the following acts: (1) Misappropriating company funds; (5) Taking advantage of their position to seek business opportunities belonging to the company for themselves or others without the consent of the shareholders' meeting or shareholders' meeting, operating for themselves or for others in connection with the company they serve. Similar business; (6) Accepting commissions from others’ transactions with the company as one’s own; (8) Other behaviors that violate obligations to the company. The income earned by directors and senior managers from violating the arrears regulations shall belong to the company. So the answer to this question is A.

28. Answer: C Test point: Share transfer

Analysis: According to the provisions of Article 142 of the "Company Law", the shares of the company held by the promoters shall be transferred from the date of establishment of the company. Transfer is not allowed within one year. Item D is wrong. Note that this is a modification of Article 147 of the original Company Law, changing the limit on transfer time by the promoter from three years to one year. Directors, supervisors, and senior managers of a company shall report to the company the shares they hold in the company and their changes. The shares transferred each year during their term of office shall not exceed 25% of the total number of shares they hold in the company. Item B is wrong. Article 143 of the Company Law stipulates that a company shall not acquire its own shares, except under special circumstances. The company is also not allowed to accept its own stocks as the subject of pledge rights, so item C is correct and item A is wrong.

29. Answer: D Test point: Procedures for the establishment of a joint stock limited company

Analysis: my country's "Company Law" has relatively strict regulations on the establishment of a joint stock limited company. Its establishment methods include establishment by initiation and establishment by raising funds. During the establishment of the company, the promoters shall subscribe for the shares to be issued by the company, which shall not be less than 35% of the total number of shares of the company. The promoter can only raise shares from the public after paying in full the subscribed capital. Then the promoter should prepare a prospectus and sign an underwriting agreement and a share collection agreement, and apply for approval of the offering with relevant legal documents. After all the above activities are completed, the public offering is held, the founding meeting is held, and the application for establishment registration is made. All of these are carried out step by step. Without the previous step, it is impossible to proceed to the next step, otherwise it will be illegal. Refer to the provisions of Articles 84.85.86.88.89.90 and 91.93 of the Company Law.

30. Answer: B Test point: Company under establishment

Analysis: According to the general theory of company law, a company under establishment does not yet have legal person qualifications. If the company is established in accordance with the law, then The rights and obligations arising from the actions during the company's establishment process shall be borne by the company. If the company fails to be established in accordance with the law, the promoters shall bear joint and several liability for the rights and obligations arising from the actions during the company's establishment process.

31. Answer: C Test point: Distribution of partnership profits

Analysis: Article 32 of the "Partnership Law" stipulates: "The profits and losses of a partnership shall be determined by the partners in accordance with the partnership The proportion of distribution and sharing agreed upon in the agreement; if the partnership agreement does not stipulate the proportion of profit distribution and loss sharing, it shall be distributed and shared equally by each partner. The partnership agreement shall not stipulate that all profits shall be distributed to some partners or all losses shall be borne by some partners. "During the existence of a partnership, the partners' capital contributions and the benefits obtained in the name of the partnership are all contributions to the partnership. The property accumulated by a partnership is the property owned by all partners in shares. It is worth noting that it is only the accumulated property and not the property of the partnership. In addition, this kind of share-based *** is quite special and manifests itself as a potential share. That is, during the existence of the partnership, the partners are not allowed to request the division of property in proportion to their shares, nor are they allowed to use the size of their shares to determine a partner’s share of the partnership property. The rights in use and management and the rights in the execution of partnership affairs. The share ratio has practical significance only when distributing the profits of the partnership, withdrawing from the partnership and dissolving the partnership, and serves as the basis for the distribution of profits and division of property among each partner.