问题 问答题 简答题

商法与行政法关系

答案

参考答案:

联系:商法在公法性规定上主要为行政法律规范

区别:行政法是调整行政活动的法律规范总称,主要规定国家行 * * 力的组织、行 * * 力的获得欧冠以及对行政活动后果的救济

行政法调整的行政关系与商法调整的商事关系具有不同特性:

A行政关系是根据国家意志产生的是国家权力运用的结果商事关系时给予商主体的自由意志产生的,是商主体自主自愿行为的结果

B行政关系的法律主体,必然有一方是国家行政管理机关,有时双方都是商事关系中双方一般都是公民、法人或其他经济组织,国家知识在例外的情况下才成为商主体如政府采购

当国家行政机关对商主体行使管理职权时,可以成为由此形成法律关系的主体,但是这种法律关系不等同于商事法律关系

C行政关系具有隶属性,是一种不平权关系,商事关系具有平等性,是平权关系

D行政法以强制性规范为主,调整方法具有强制性,商法以任意性规范为主,调整方法将拥有任意性

E行政关系中主体所获得的权利是国家授予的,是职权与职责的结合,不可任意放弃不可以随意转让,商事关系中主体的权利与主体个人一直及其利益相联系,并可以由主体依照以及的意志合法处置

问答题
单项选择题

In a perfectly free and open market economy, the type of employer -- government or private -- should have little or no impact on the earnings differentials between women and men. However, if there is discrimination against one sex, it is unlikely that the degree of discrimination by government and private employers will be the same. Differences in the degree of discrimination would result in earnings differentials associated with the type of employer. Given the nature of government and private employers, it seems most likely that discrimination by private employers would be greater. Thus, one would expect that, if women are being discriminated against, government employment would have a positive effect on women’s earnings as compared with their earnings from private employment. The results of a study by Fuchs support this assumption. Fuchs’s results suggest that the earnings of women in an industry composed entirely of government employees would be 14. 6 percent greater than the earnings of women in an industry composed exclusively of private employees, other things being equal.

In addition, both Fuchs and Sanborn have suggested that the effect of discrimination by consumers on the earnings of self-employed women may be greater than the effect of either government or private employer discrimination on the earnings of women employees. To test this hypothesis, Brown selected a large sample of White male and female workers from the 1970 Census and divided them into three categories: private employees, government employees, and self-employed. (Black workers were excluded from the sample to avoid picking up earnings differentials that were the result of racial disparities. ) Brown’s research design controlled for education, labor-force participation, mobility, motivation, and age in order to eliminate these factors as explanations of the study’s results. Brown’s results suggest that men and women are not treated the same by employers and consumers. For men, self-employment is the highest earnings category, with private employment next and government lowest. For women, this order is reversed.

One can infer from Brown’s results that consumers discriminate against self-employed women. In addition, self-employed women may have more difficulty than men in getting good employees and may encounter discrimination from suppliers and from financial institutions.

Brown’s results are clearly consistent with Fuchs’s argument that discrimination by consumers has a greater impact on the earnings of women than does discrimination by either government or private employers. Also, the fact that women do better working for government than for private employers implies that private employers are discriminating against women. The results do not prove that government does not discriminate against women. They do, however, demonstrate that if government is discriminating against women, its discrimination is not having as much effect on women’s earnings as is discrimination in the private sector.

According to Brown’s study, women’s earnings categories occur in which of the following orders, from highest earnings to lowest earnings()

A. Government employment, self-employment, private employment

B. Private employment, self-employment, government employment

C. Government employment, private employment, self-employment

D. Self-employment, private employment, government employment