国际贸易合同适用国际贸易惯例的实证分析

国际私法领域的国际贸易惯例与国际公法领域的国际惯例有着明显的区别。它与国际贸易合同的关系十分密切,无论惯例的适用、修改抑或排除都离不开合同的规定。最新国际贸易惯例有发展当事人意思自治原则的新趋向,允许甚至明确赋予合同当事人有选择、修改或排除适用惯例的权利。本文在探讨国际贸易惯例定义及其与合同关系的基础上,着重论证国际贸易惯例在合同中的实际适用及适用时应当注意的若干问题。     

Opportunism and Long-Term Contracting: Transactions in Broken Hill Zinc Concentrates in the 1930s

The essay examines the design and operation of a long-term contract at the centre of the Anglo-Australian zinc industry during the 1930s. All the parties to this contract invested in durable assets that were highly specific to transactions in Broken Hill zinc concentrates. Under such conditions, according to transaction cost economics, an efficient contractual response would entail the vertical integration of exchange or, at the very least, some long-term arrangement under which the parties make sizeable credible commitments in support of exchange. The basis of the transaction cost argument is that such an arrangement is necessary to protect the parties against the risk of opportunistic behaviour by exchange partners. The contract examined here, however, did not possess such protective devices, yet, by all accounts, performed extremely well in the most testing of circumstances. Close analysis of the design and operation of this contract gives reason to question the generality of the transaction cost assumption that parties structure their institutional arrangements with a view to protect themselves against the hazards of opportunism. The parties to this contract did not anticipate a high degree of opportunism and this was reflected in the design of their contract. From the analysis of the way the contract actually operated it is clear that this expectation was more than justified and exchange in Broken Hill zinc concentrates was characterised by close co-operation and forbearance rather than opportunism.     

The organization of relational contracts: The allocation of rights in franchising

Franchising contracts are designed to bring together two kinds of entrepreneurs, the franchiser and the franchisee, and to maintain their relationship in the long run. In contrast to standard exchange contracts in law, which are specifically designed to bring about the completion of an exchange efficiently, franchise contracts are designed to make it possible for the entrepreneurs to initiate, to maintain, and to eventually terminate their relationship without dispute. The research reported in this article is an attempt to see how the dual purpose of franchising contracts are achieved. The article first describes the internal organization of franchise contracts (what we called the micro-contractual aspects) and how different kinds of rights and obligations are allocated to accomplish these multiple ends. The second part of the article provides an empirical examination of 30 franchise contracts to see if the internal organization of the contracts influence both the expansion of the franchise operations through new franchises and the amount of dispute between the two sides of franchise contracts.Every franchise contract includes a set of provisions that define the commencement, termination, and ongoing operations of franchise relations. The internal organization of franchise contracts specifies what kinds of rights and obligations are distributed to the parties and the nature of this allocation within each domain of provisions. We argue that the commencement and termination aspects of franchise contracts are usually written in order to make the relationship between the parties clear, and the contingencies specific. In these provisions, the contract is written in discrete terms in which each party's rights and duties are specifically delineated. The contractual provisions dealing with the ongoing operations and the conduct of the parties, on the other hand, cannot be made specific because it is impossible to define all the future contingencies and possible business opportunities. Under these conditions, the contract is usually written in relational terms in which each party's rights and obligations are defined in terms of powers and liabilities towards each other rather than in terms of specific duties and rights.One critical consequence of writing contracts that include powers and liabilities, however, is that it may lead to disputes and undesirable conflict that are detrimental to the success of the franchise. In order to deal with these conflicts among the parties, the contract needs to specify conflict resolution mechanisms that are an integral part of franchise contracts.These general arguments are tested with the use of 30 randomly selected franchise contracts from a diverse set of businesses. Our results show that, indeed, different parts of franchise contracts allocate rights and obligations differently and the more relational a contract becomes the more likely that it would include various dispute resolution mechanisms. We also found that the success of a franchise contract, which is measured by the number of legal disputes it generates and the growth of franchised units, is influenced by the existence of relational provisions and the explicit dispute resolution mechanisms included in the contract.We recommend that franchise contracts should be written to make the commencement and termination aspect of the relationship as discrete as possible. The operations and conduct provisions of the contract, on the other hand, should be written in relational terms to give the parties the ability to respond to changes in business conditions without renegotiating the contract.It is usually the tendency on the part of franchise lawyers to write discrete contracts that attempt to specify every conceivable contingency to avoid future disputes. We argue here that a better strategy is to limit the discrete aspects of the contract to the commencement and termination clauses and to concentrate more on the dispute resolution mechanisms that can become an integral part of the contract. Thus, we also recommend that various dispute resolution mechanisms, such as franchisee associations, franchisee councils, and third party arbitration should be set up within the contract to address the possible disputes early on rather than to wait for potentially very costly court proceedings for both parties.     

商业合同附随义务根本违约之判断标准

当事人在商业合同中构成附随义务根本违约的判断标准包括:当事人之间须存在有效的合同关系,当事人一方或双方实施了违反附随义务的行为以及违约后果严重致使非违约方合同目的落空。但是,不是只要一方当事人的违约致使他方合同目的落空就必然构成根本违约,基础目的、单方目的、直接目的、初始目的、单一目的的落空必然构成根本违约;而效果目的、嗣后目的的违反不能构成根本违约;间接目的、双方目的和混合目的的违反只有危及合同的根基时才能构成根本违约。     

Revenue-sharing contracts across an extended supply chain

Revenue-sharing contracts have been heavily researched and promoted in the academic literature. However, despite some well-documented examples (e.g., the way Blockbuster and film studios were able to increase availability of the latest video releases in rental shops through a revenue-sharing contract), they seem to be much less prevalent in practice. A possible reason for this gap between theory and practice is that most academic research has focused on two-party contracts involving only one buyer and one supplier, while in reality, most supply chains consist of multiple stages. When there are several stages in the chain—as is the case for many extended, global supply chains—the traditional revenue-sharing contract is no longer optimal for the two contracting parties, as every other participant in the chain is able to leverage the revenue-sharing contract to its own advantage. Put another way, a revenue-sharing contract between only two parties is not incentive-compatible across all participants. Accordingly, we suggest that a revenue-sharing contract should involve all the supply chain partners, and propose a spanning revenue-sharing contract that accomplishes coordination and incentive-compatibility across the same.     

Conditions for Conclusion of Open-ended Employment Contract

The Law of the People＇s Republic of China on Employment Contracts （short for Law on Employment Contracts） carried out in 2008 classified the employment eantracts into three types： fixed-term employment contract, open-ended employment contract and employment contract to expire upon completion of a certain job. Generally speaking, in open-ended employment contract, the employer and employee shall not make an agreement on the time limit of employment contract and this shall be very important for the stabilization of the working relationship and the protection of the employees. So, as soon as this definition came into being, a number of domestic media pay much attention to it.     

论情势变更原则

情势变更原则是指合同有效成立以后,因当事人不可预见的事情发生,致使合同的基础丧失或者动摇,若继续持合同原有的效力则显失公平,而允许变更或解除合同的原则.它旨在维持当事人之间利益平衡,切实贯彻民法中的公平原则、兼顾诚实信用原则.从而使我国现行法律中明确情势变更原则的现实性和必要性.并且在理论认识上的日趋深化和在司法实践中的经验的不断积累,情势变更原则的立法环境和时机也会更加成熟,确立情势变更原则从而也为完善我国合同法的需要十分关键,以使得我国经济生活中所发生的情势变更事件能更好地得以解决.     

电子认证法律关系探析

电子认证是一种信用服务,是对电子签名的证明。电子认证中各方当事人的权利义务基于认证服务合同产生,各方当事人都享有一定的权利,也必须承担相应的义务。电子认证法律关系实质上是一种合同关系。     

合约实施效率与中国地区产业比较优势

文章讨论了中国合约实施效率的地区差异对地区产业比较优势的作用机制。文章研究表明,由于中间品合约的不完全实施导致事前专用性投资扭曲和最终产品价格上升,因此,相对于合约实施效率较低的地区而言,地区合约实施效率较高地区,专用性中间品密集使用产品的相对价格较低,从而在专用性中间品密度使用产业上具有比较优势。本文利用中国2006年各地区分产业数据所做的经验研究支持了这一观点,即合约实施实施效率是显著导致地区比较优势的重要因素。认为合约实施效率的改进是地区产业经济结构调整和地区之间经济协调发展的前提,它有助于促进地区贸易结构的改善。     

心理契约、公平感、发言权与工作卷入——基于劳务派遣工的实证研究

基于社会交换理论、社会比较理论,围绕员工的公平和发言权实现程度,本文探讨了劳务派遣工的心理契约履行与工作卷入的关系、以及分配公平和程序公平感知的中介作用及工会会员角色的调节作用。研究采用问卷调查法,基于7家劳务派遣单位的171个劳务派遣工样本进行分析,结果表明：劳务派遣工感知到的心理契约履行与工作卷入程度显著正相关,分配公平和程序公平感知在两者间起完全中介作用。层次回归方程分析的结果显示,“是否加入工会”对程序公平与工作卷入的关系具有显著的调节作用,即相对于未加入工会的劳务派遣工,加入工会的派遣工的程序公平感知与工作卷入的正相关关系较强。最后,论文针对假设检验的启示和意义进行探讨。     

Hotel management contracts in the U.S.: The revolution continues

The relationship of owner and operator embodied in a hotel management contract endures despite changes in contract lengths and provisions, alterations in relative bargaining power, and the addition of such interested parties as bankers and asset managers.     

The Affinity Credit Card Relationship: Can it Really be Mutually Beneficial?

As an attempt to determine levels of benefit in a marketing relationship a model rooted in the biological sciences has been used. The model uses degrees of symbiosis in parasitology to investigate the complicated relationship structure between financial institution, charity and cardholder, found in the case of the affinity credit card. Taking one focal point of this triadic relationship, interviews were conducted with the relationship managers from a sample of UK charities. The results of the qualitative research suggest that where both parties in the relationship were proactive and wanted the relationship to flourish it was perceived to be mutually beneficial. The financial institution is in a win-win situation by gaining access to the charity database, but the charity has to demonstrate matching enthusiasm otherwise the affinity card will not reach its potential for the charity. The research also suggests that the perceptions of the mutuality of the relationships do not always match up to the reality. If, however, both organisations fully understand the implications of the possible degrees of symbiosis within the relationship, then mutuality is possible and the model developed here should help that understanding.     

The New Employment Contract and the “At Risk” Worker

Employees of large blue chip corporations in the 1950s through the mid-1960s demonstrated great loyalty to their employers. In return, those employers provided cradle to grave job security and benefits for their workers. During the 1980s, however, this social contract between employees and employers seems to have undergone a change. The norms of the organization man of the earlier period passed from use and a new normative framework seems to have developed. The norm of loyalty on the part of both parties seems to have passed from practice. Employers would now terminate employees if it was in their short term interest to do so, while employees began to move from company to company, no longer making a career with one employer. Many writers have attributed this new employment relationship to the dynamics of the times, as we move from modern to late modern/early post-modern times. This paper reports the findings of a pilot qualitative study done with graduating seniors from an AACSB accredited business school (n=48). The subjects were asked to write self-reflective essays on the following themes: Given the nature of the new employment contract, are careers a vestige of the past? How do you feel about such concepts as career self reliance and career resiliency? Do you feel “at risk” in the new world of work? If so why, if not why not? If so, how do you plan to deal with it? The paper reports the critical response patterns of these graduating seniors and draws insights and conclusions from the literature illuminating the student reflections.     

环境联接合约——贸易与环境问题解决的有效途径

企业环保意识的逐渐加强,使得贸易与环境问题回归市场解决成为可能,并可通过贸易双方订立"环境联结合约"来实现.文章分析了环境联接合约签订的基础和作用,并对其条款进行了设计.作为协调环境保护与贸易自由的制衡点和贸易双方贸易利益与环境利益的最佳结合点,环境联接合约的签订和履行在促进环境公平、实现环境成本内在化等方面有积极的建设性作用.     

Evidence-Based Electronic Contract Performance Monitoring

One aspect of the development of e-market services for the facilitation of business-to-business electronic commerce concerns the provision of automated support for contract performance assessment. Assessing the parties' performance of an agreement, once it comes into force, requires reasoning with the contract terms (obligations, rights, powers and other legal relations that obtain between parties) as parties go about conducting their business exchange, sometimes complying and sometimes deviating from their pre-agreed prescribed behaviour. Compliance with prescribed behaviour is typically evaluated individually by each partner to an agreement and where parties' views differ, disputes arise that require some form of resolution.In this paper we present a simple architecture for an e-market, where an artificial (controller) agent undertakes such resolution. The controller's decision-making is informed by the agreement and each party's view of whether its own and the counter-party's behaviour comply with it. Thus, the controller forms an opinion on the basis of such evidence (and possible additional recommendations from agents representing the parties), in similar spirit to a (human) judge's process of reasoning in arriving at his ruling. We consider this as a belief formation problem and explore the potential of using subjective reasoning to represent an individual's (possibly partial) views and to reason about their joint conflict and consensus formation. We comment on the relation of such belief formation on the establishment of trust between partners to an agreement and between the latter and the controller of an e-market.     

关于定金担保的几个问题

定金作为合同担保的一种方式,经常被加以运用,但由于现行法律这方面的规定较为简单,在实践中易产生理解上的分歧而导致诉讼。文章认为,关于定金担保的标的物,除金钱以外可以扩大至价值具有可度量性的有体物;关于定金合同的成立必须以主合同的成立为前提,主合同不成立,定金合同亦不能成立;关于违约金或定金罚则的选择,应根据合同的约定、违约形态、违约发生阶段或者当事人损失的大小等来加以选择;关于定金罚则的适用,则必须以定金合同的有效为前提,而定金合同的无效,又存在全部无效和部分无效等情形。     

Power Imbalance in UK Agri-Food Supply Channels: Learning to Live with the Supermarkets?

This study investigates the issue of power in the context of UK agri-food industry vertical business-to-business relationships, where the majority of control lies in the hands of large multiple retailers. Predominant in agri-food channels is the reduced supplier sourcing model; featured is the widespread application of Category Management (CM) and network supply co-ordination, through a new breed of super middlemen. The received view from the Relationship Marketing (RM) literature with its emphasis on trust, dyadic symmetry and mutuality is questioned. It is contended, alternatively that other types of relationships, for example, those based on selfishness are equally relevant; and that power imbalanced business relationships are just as important to the understanding of business exchange. Further, power should be a central consideration when concerned with business relationships and imbalance in power is no specific barrier to parties entering into collaborative relationships or to their success. This article contends that acceptance of power-imbalance is a key first-step to successful relationship building in agri-food channels and although collaborative chain activity is endorsed, suppliers are advised that this still means operating within conditions of imbalanced power and reward.     

民事证据契约相关问题研究——以协同主义理论重构为基础

我国民事诉讼构造的趋势为协同主义，证据契约的研究应于此前提下展开。协同主义要求诉讼各方协同发现事实，合理分配诉讼权限。因此，证据契约应囊括三方主体，除却当事人外，还应列裁判法官为监督、审查及阐明主体；证据契约的效力应以权限划分合理与否为标准，排除牵涉证明标准、证明力、证明责任等因素的合意之效力。惟有如此，证据契约制度方与法制体系相契合。     

Dispute over Capital Contribution in A Joint Venture

In November 1994, the Claimant and the Respondent signed an agreement to establish a limited liability entertainment company （the joint venture）. The contract required both parties to contribute capital, including a one-time payment of registered capital made within five months of acquiring the necessary license to conduct business. The joint venture obtained a copy of this license on November 30, 1994. The Claimant argued that it provided capital in full within the time limit specified by the contract and alleged that the Respondent was unable to fulfill its obligations because the property it intended to provide as capital had already been mortgaged to another party. Negotiations conducted by the parties concerning this dispute failed to produce a result. In 1996, according to the terms of the contract, the Claimant referred the matter to CIETAC for arbitration.     

The influence of job demands and resources on repatriate career satisfaction: A relative deprivation perspective

Drawing on Job Demands–Resources and relative deprivation theories, we develop a model of repatriate career satisfaction. We examine three job demands (psychological contract breach associated with pay, career derailment, and perceived underemployment) and suggest that each induces feelings of relative deprivation and thus is detrimental to repatriate career satisfaction. We further examine how two job resources, repatriates’ perceptions of how valuable their international assignment is to their careers and their beliefs about how it is valued by their organizations, moderate the job demands–career satisfaction relationships. Using a sample of 84 repatriates, we found some support for our integrated framework.