最新国际商法英文案例选编_徐赟倩_9787566312785

　　商务和法律教育的目标不仅要使学生系统掌握理论和规则，还应培养学生的思辨能力，使其能够将特定的规则与相应的生活实践联系起来，并进而运用规则去解释和处理现实生活和工作中的问题。因此，高等院校的专业教学应该以学生为中心，使教师的“教”和学生的“学”相结合，调动学生的积极性，才能较好地实现教学目的。案例教学侧重于实践教学，从素质教育和培养学生创造能力的角度，对激发学生专业学习兴趣、培养学生专业素质、提高学生在实践中探究学习方法的自觉性、有效地将理论知识转化为专业技能等多方面都能发挥重要作用。
　　《最新国际商法英文案例选编/全国高等院校双语案例教程系列教材》适用于各高校的商学院、法学院以及其他学院的国际商务专业及商务英语专业的教学，主要为全英教学或双语教学的商务类或法律类课程，提供具有参考价值的、国内外有影响力的国际商法案例。既可帮助学生加深对国际商法基本概念、实践操作的理解，同时也为教师在教学中选择案例、组织讨论提供便利。
　　与其他同类案例教材相比，本书在编写过程中贯彻了如下特点：
　　1.《最新国际商法英文案例选编/全国高等院校双语案例教程系列教材》并非以某一本特定的商务或法律英文原版教材的编写结构为顺序来编写案例，而是按一般商法教材的编写结构，涉及国际商法的几大领域，如公司法、合同法、销售法、代理法、票据法、WTO法、竞争法、电子商务法。这样有助于各所高校选择不同英文原版教材的教师在教学过程中按不同主题选择案例。
　　2.《最新国际商法英文案例选编/全国高等院校双语案例教程系列教材》在案例的选择上经过仔细筛选，兼顾其影响力和时效性。案例多选择美、英、中、澳等经济大国的案例，多选择具有重大影响力甚至是里程碑意义的案例，并纳入不少2000年后国内外的新近案例。
　　3.《最新国际商法英文案例选编/全国高等院校双语案例教程系列教材》在编排结构上注重有针对性的引导学生思考，并非是英文案例的简单堆积。
　　在每一章节开篇设置导读部分“Introduction”，对本章节内容进行提纲挈领的介绍，以最基本的法理和知识要点为主，兼顾整体性，方便学生复习或预习该主题。

　　《最新国际商法英文案例选编/全国高等院校双语案例教程系列教材》：
　　To allow a corporate riduciary to take advantage of a business opportunity when the fiduciary deternunes the corporation to be unable to availitself of it would create the worst sort of temptation for the fiduciary to rationalize an inaccurate and self-serving assessment of the corporation's financial ability and thereby compromise the duty of loyalty to the corporation. If a corporate riduciary's duty of loyalty conflicts with his personalinterest, the latter must give way. Unless a corporation is technically or de facto insolvent, a determination whether a business opportunity is corporate or personal does not depend on the corporation's relative rinancial ability to undertake the opportunity. To avoid liability for usurping a corporate opportunity on the basis that the corporation was insolvent, the fiduciary must prove insolvency.
　　The appropriate method to determine whether or not a corporate opportunity exists is to let the corporation decide at the time the opportunity is presented. If a fiduciary is uncertain whether a given opportunity is corporate or not, or whether the corporation has the frnancial ability to pursue it, he needs merely to disclose the existence of the opportunity to the directors and let them decide, Disclosure is a fundamental fiduciary duty. It cannot be burdensome, and it resolves the issue for all parties concerned and eliminates the necessity for a judicial determination after the fact.
　　In the present case, defendants do not contend that Berlinair was technically or defactoinsolvent. Although the company has run a deficit since commencing operations in 1977 and periodic infusions of capital have been required, that state of affairs does not constitute technical or de facto insolvency unless there is an imminent threat to the business' continued vitality Plaintiff offered expert testimony that Berlinair could have obtained adequate financing to secure the BFR contract. Defendants' expert witness, Beyer, an airline management expert, expressed the opposite opinion. However, there is nothing in his testimony or otherwise in the record to suggest that Berlinair was insolvent or was no longer a viable corporate entity. We conclude that ABC usurped a corporate opportunity belonging to Berlinair when, acting through Lundgren, the BFR contract was diverted. Accordingly, the constructive trust, injunction, duty to account and other relief granted by the trial court are appropriate remedies.
　　We turn now to plaintiff's cross-appeal. He brought a personal claim against Lundgren for breaches of fiduciary duty. Plaintiff sought actual and punitive damages. The actual damages issue was tried by the court. A jury was empanelled to try the punitive damages issue and found against Lundgren, but the court never made an award of actual damages.
　　The court granted the motion to dismiss and set aside the jury verdict for the reason that punitive damages are not available in equity. Pedah Company v Hunt, 265 Or 433,509 P2d 1197（1973）, had held that a court of equity cannot award punitive damages incident to the granting of injunctive relief. The stated reason for the rule was that an award of punitive damages by a court sitting in equity without a jury was believed to compromise a court's ability to do justice between the litigants. However, in Rexnord, Inc. v Ferris, 294 Or 392,657 P2d 673（1983）, after the trialin this case, the court held that a court may award both punitive damages and equitable relief in a single action if the plaintiff pleads and proves a claim which factually would permit an award of punitive damages.
　　We must rirst determine, therefore, whether plaintiff's individual action against Lundgren for breach of fiduciary duty is the sort of claim that permits an award of punitive damages. Noting that punitive damages are not favored in the law, we nevertheless conclude that a breach of fiduciary duty can be sufriciently reprehensible to justify submitting punitive damages to a jury. In the present case, suffice it to say, Lundgren's course of conduct in secretly diverting the BFR contract to his own company, ABC, was certainly sufriciently aggravated to create a jury question as to whether punitive damages should be awarded.
　　Plaintiff's indual claim against Lundgren sought both actual and punitive damages. Why the court made no award of actual damages does not appear in the record. In Oregon an award of punitive damages is not proper unless there is also an award of actual damages. Although we are not aware of any case that has ever explained the rationale for the rule, we are bound by it. Because punitive damages cannot be awarded when actual damages are not, the grant of defendant's motion to dismiss plaintiff's claim for punitive damages against Lundgren was correct.
　　We are perplexed by the trial judge's sua sponte entry of a judgment not in favor of Lundgren on the punitive damages issue. We agree with plaintiff that entry of the judgment not in the absence of a motion by defendant is precluded by the plain language of ORCP 63. However, entry of the judgment now, based as it apparently was on the properly granted motion to dismiss, was harmless error.
　　Affirmed.
　　……

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