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2010年12月ACCA考试考官报告(F4)(1)

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　　具体意见：问题一要求考生解释名词“专属管辖”，并列出专属管辖在民事诉讼法下的主要法律特征。问题二要求考生解释名词“留置权”，并列出当事人要求留置权的所有情形。

　　Specific Comments
　　Question One
　　This question required candidates to explain the term exclusive jurisdiction,and state the major legal characteristics of the exclusive jurisdiction under the Civil Procedures Law.

　　Exclusive jurisdiction means a territorial jurisdiction under which the court of place shall have the exclusive jurisdiction over the particular disputes,even if such jurisdiction is in conflict with the jurisdiction based on the common territorial jurisdiction.Therefore,it is a special territorial jurisdiction normally is adopted in dealing with the disputes arising out of real estate,harbour operations and succession.

　　The major legal characteristics of this jurisdiction include:First,this jurisdiction shall be specially prescribed by the law and shall be strictly complied with by the parties to the disputes and the courts hearing the case.Second,any judgements based on the jurisdiction in violation of the rule of exclusive jurisdiction shall be refused to be enforced by the court in the place on which the exclusive jurisdiction is based.

　　Most of candidates were able to give a correct answer to part (a) of this question.However,only very limited candidates pointed out the legal characteristics of this jurisdiction in part (b),especially the legal effect of a court judgement that is in conflict with the rule of exclusive jurisdiction.Therefore,although this was a question of basic knowledge,the performances of candidates on this part were not satisfactory.

　　Question Two
　　This question required candidates to state the term right of lien,and state the conditions to be met for a party to claim the right of lien.

　　Right of lien refers to such a property right where an obligor fails to pay off its debts due,the obligee may take lien of the movable that is owned by the obligor but lawfully in the obligee’s possession and has the right to seek compensation in priority from such movable.It should be noted that the right of lien is a statutory right that cannot be established by a contract between the parties concerned.

　　Therefore,parties to a contract cannot establish such a right by a contract or agreement.Whenever parties agree upon that the obligee may possess the movable of the obligor and be repaid in priority if the obligor fails to pay off the debts due,such a right is not the right of lien in nature.In practice the right of lien would often be claimed by a party when the other party put a movable (such as a car or TV set) for repairing but fails to pay off the repairing cost,this party (repairing shop) may possess the relevant movable.The repairing shop is entitled to be repaid in priority if the said movable is converted into money by auction.In such a circumstance the two parties merely enter into a repairing contract,no lien contract at all.

　　The customer delivers the things for repairing to the repairing ship,and the latter possesses the things lawfully under the repairing contract.If the customer fails to pay the repairing fees,the repairing shop’s claim for the right of lien is not based on the repairing contract but the relevant provisions of the Property Law.Another common example is the circumstance under which a shipper fails to pay off the freight and the carrier possesses the goods delivered to the carrier for carriage.

　　Part (a) of this question was not answered as expected.The common errors in Part (a) were that many candidates did not distinguish the rules as to lien and mortgage and failed to state directly the right of lien being a statutory right.Of course,mortgage is also a form of guaranty and is generally used in business transactions,it is established on the contract between the parties who are involved certain business transaction.Without a mortgage contract or agreement,the obligee of the transaction can claim the right of lien.

　　Part (b) of this question required candidates to state the conditions to be met by an obligee intending to claim the right of lien.According the relevant provision of the Property Law,three conditions shall be satisfied simultaneously where a party intends to clam such a statutory right:First,the obligee shall lawfully possess the movable of the obligor.Secondly,the movable taken by the obligee and obligee’s right shall fall into a same legal relationship,except for the lien between enterprises.Thirdly,the obligor fails to settle its debts due.

　　Most of candidates were able to state only one or two conditions but failed to point out all three conditions to be met.Only a few candidates were able to state the particular condition as to the same legal relationship.It means that an obligee can only take the movable,which is a subject matter of a contract and lawfully possessed by the obligee,as the subject matter of lien.The obligee is not allowed to take other properties of the obligor to claim the right of lien for satisfying its credit.