问题 问答题

甲在电视上登了这样一则广告:“本人丢失纯种牧羊犬一条,身高约90厘米,微胖,脖子处系she’s牌饰物一个。因主人与此狗感情深厚,有拾到此狗者可以获得报酬5 000元。”
乙今年8岁,一日在路边玩耍发现此狗,并将其交还于甲,当乙向甲索要报酬时,甲称,其在屯视上的悬赏广告是要求订立合同的要约行为,而合同的订立要求对方具有行为能力,但乙仍属于无行为能力人,因此,合同不能成立,乙不能获得报酬5 000元。1. 如何在理论上解决乙无法取得酬劳的矛盾请结合悬赏广告的性质展开论述。
答题要求:
1.运用掌握的法学知识阐释你的观点和理由。
2.说理充分,逻辑严谨,语言流畅,表达准确。
3.不少于600字。

答案

参考答案:在本题中,甲以公开的方式登了寻物启事,并承诺报酬,这是典型的悬赏广告。悬赏广告是指广告人以广告的形式,对完成广告中要求的特定行为的任何人,给付广告中所承诺的报酬的意思表示,对于悬赏广告的性质,一般具有要约说和单方法律行为说两种观点。前者认为悬赏广告是广告人向不特定的多数人即向公众发出的要约;后者则认为悬赏广告是因广告人一方的意思表示而成立的债务,而相对人无须承诺,仅以其一定行为的完成作为停止条件。我们认为,要解决题目中的问题,将悬赏广告作为附停止条件的单方法律行为更加合理。
首先,从保护行为完成人的利益方面,采取要约说会将行为能力欠缺者排除在行为人之外,无行为能力者将无法进行有效承诺,进而订立合同,正如题中所描述的情形,这样将不利于保护行为人的利益。而如果将悬赏广告看做附停止条件的单方法律行为则可以避免这样的问题:当行为人完成行为时,单方行为生效,广告人即须向行为人给予报酬。
其次,从维护交易安全方面,附停止条件的单方行为更有利于交易安全的维护。一方面,如果将悬赏广告看做要约,则依据要约的相关规定,要约人可以在相对人承诺之前撤回或撤销要约,或者变更要约的内容,这显然对相对人很不利,另一方面,如果将悬赏广告看做要约行为,在何种情形下认为是承诺将产生较大的分歧,有人认为在着手一定行为前有意思表示者为有承诺,有人认为着手一定行为即为承诺,有人认为一定行为的完成为承诺,有人认为在一定行为完成后另外有意思表示为承诺,有人认为须将完成一定行为的结果交给广告人才为承诺。但如果将悬赏广告看做单方法律行为,则广告人所负担的债务在一定行为完成时即为发生,法律关系明确,更利于交易安全。
综上所述,将悬赏广告认定为附停止条件的单方法律行为可以解决题目中的问题,而且从逻辑和法理上更加合理。

单项选择题
单项选择题

In Idaho’s Snake River Valley, where potato farmers depend on electric pumps to water their crops, the state’s largest power company hopes to stand tradition on its head and profit by selling farmers less, not more, electricity. To do that, Idaho Power is vastly expanding its energy-efficiency programs for 395,000 residential customers, small businesses, and farmers. Usually the more customers save, the less utilities make. But under an innovative deal with state regulators in March, Idaho Power gets paid for its plants and equipment and boosts profits by winning incentive payments for reducing electric demand.
It’s an idea that appears to be catching on as legislatures fret about global warming and utilities scramble to meet rising demand without the increasing harassment and cost of building new power plants. Idaho is among 13 states whose regulators have either adopted or proposed measures in the past year to decouple utility profit from electricity production. Decoupling is advancing even faster for natural-gas utilities, with 25 states either adopting or proposing decoupling plans in recent years. "This wave toward ’decoupling’ is clearly gathering momentum," says Martin Kushler of the American Council for an Energy-Efficient Economy in Washington. "More states seem to be calling every week to find out about this."
Although California pioneered the idea 25 years ago—and strengthened incentives and penalties last month—interest is picking up again because of global warming, experts say. The main idea is that by rearranging the incentive structure, regulators can give utilities clear incentives to push energy efficiency and conservation without hurting their bottom lines. Under the new rules in California, for example, electric utilities could make as much as $150 million extra if they can persuade Californians to save some $2 billion worth of power, according to the Natural Resources Defense Council.
"This is a vital step in the global-warming fight," says Audrey Chang, an NRDC researcher. "It represents, we hope, a historic shift toward decoupling that is going to help bend the energy demand curve downwards." Beside Idaho, states that this year adopted decoupling for some or all of its electric power industry include New York, Connecticut, and Vermont. At least nine other states have seen major decoupling proposals this year.
Idaho Power is happy that its key fixed costs—plants and equipment—are now separated from variable costs of electricity sales such as fuel. Regulators annually readjust those fixed rates—up or down—a maximum of 3 percent to ensure that the company gets no more or less than it has been regulated to receive. But customers should benefit, too, as utility efficiency programs cut energy use and energy bills—something the company is trying hard to do so it can win a bonus if it meets or exceeds energy—cutting goals. "Before there was almost a disincentive to go hard at efficiency because we weren’t recovering our fixed costs," says Mike Youngblood, an analyst for Idaho Power. "Now the anticipation is that we will recover our fixed cost, no more or less. And our customers will see their bill go down if they invest in energy efficiency."
One key reason utilities are often willing to decouple or even leading proponents of the proposals is because the costs of building a power plant has risen dramatically. A 500- megawatt coal-fired plant that cost $1 billion just a few years ago might cost $1.5 billion today, industry experts say. Add to that growing uncertainty about future costs. Global- warming legislation could put a price of $ 30 per ton on carbon-dioxide emissions from power plants. That could make coal, the cheapest power today, more costly. Another factor is the rising community opposition to coal-fired power plant construction.
In North Carolina, where regulators recently refused a Duke Energy Corp. proposal to build a power plant, the company has instead put forward a controversial decoupling proposal. The plan would pay the company to meet efficiency standards, although consumer advocates and even environmental groups question whether it’s a good deal for ratepayers. In fact, some consumer advocates have major reservations about decoupling overall. "Unfortunately, we’re seeing utilities trying to use decoupling as a blank check," says Charles Acquard, executive director of the National Association of State Utility Consumer Advocates in Silver Spring, Md. "We’re not absolutely opposed to decoupling. It’s how you do it that’s critical.\

In the passage, the measures of decoupling used in utility efficiency programs refer to the practice of ______.

A.separating the utility profits from power production

B.combining fixed costs with variable costs

C.strengthening both incentives and penalties

D.rearranging the incentive structure