如何保护中小股东的利益——从我国新《公司法》看中小股东利益的保护机制

股东利益保护是公司治理的核心问题,特别是如何有效地保护中小股东的合法利益是我国公司治理的重要问题。本文试从中小股东利益保护的理论基础出发来论述我国新修订的《公司法》在保护中小股东利益上的制度设计。     

公司治理结构研究——金融危机的启示

公司治理结构是指公司股东、经营者、职工等利益相关者之间就分配剩余控制权和剩余索取权的一系列制度性安排。不同的股权结构决定了不同的公司治理结构,所有权与控制权的分离程度可以解释公司治理的国际争论。在股权高度分散、公司所有与控制分离的情况下,公司治理核心问题是管理者与股东利益的冲突问题。而在集中持股结构的国家,大型公司的首要治理问题是限制控制股东对小股东的盘剥。本文指出在这次起源于华尔街的金融危机中,美国公司与日本、德国公司的不同表现给我们研究公司治理结构带来了新的启发。     

利益相关者参与公司治理的法律思考

为了协调与公司有关主体的利益,利益相关者参与公司治理模式应运而生。随着发展,公司股东和其他利益相关者的冲突日益突出。由此产生了诸多问题,引发了许多矛盾。为此,由利益相关者与股东共同治理公司的模式逐渐流行。完善利益相关者参与公司治理应当从立法、财务管理模式、法制环境建设等方面着手。     

对我国新《公司法》股东代表诉讼制度的思考

股东代表诉讼制度在保护中小股东利益和完善公司法人治理结构等方面发挥着重要的作用。我国新《公司法》第152条确定了股东代表诉讼制度,但是该规定却未对公司在股东代表诉讼中的地位问题、股东代表诉讼能否和解等问题加以明确。本文对这些问题进行了思考并提出了相应的完善措施。     

我国证券交易所法律性质之重塑——兼论证券交易所互助化与非互助化的取舍

我国有不少学者主张借鉴西方发达国家证券市场的做法,改革我国现有证券交易所的会员制属性并进行公司化改革。但是,以政府主导为特点的我国证券交易所和以市场需求为主导的发达国家的证券交易所在历史背景、作用及地位等各方面都存在着很大的差异性,这使得我国证券交易所从来就不是一个完整意义上的会员制交易所。因此,以非互助化为特点的公司制并不是我国证券交易所的最优选择;相反,在处于新兴市场加转轨特征的市场环境和法制环境下,以互助化为特点的真正意义上的会员制交易所仍是我国证券法律体系和证券监管实践所应尽力追求的目标。     

股东查账权若干问题探讨

股东查账权是股东的一项基础性权利,对保护股东权利、完善我国公司治理制度具有十分重要的意义.股东查账权法律制度所承担的核心功能或者说调整的利益关系的核心内容是对股东查账权与公司经营权的冲突的协调.本文在对这些问题作简要分析的基础上,就股东查账权与公司财务审计权的界限及股东查账权的司法标准等问题进行了进一步探讨.     

多元化利益主体参与公司治理的路径选择

从本质上讲 ,公司无非是不同利益主体为了追求利益最大化所缔结的契约。其中 ,股东、职工、债权人被并称为公司的三大利益主体 ,由于自身的利益与公司利益的密切联系 ,决定了这些利益主体天然地具有参与公司治理的原始冲动。因此 ,本文认为 ,三大利益主体的介入是完善我国公司治理的必由之路。本文为三大利益主体参与公司治理设计的路径是 :(1)通过小股东从“消极股东”向“积极股东”的回归避免公司治理中“股东大会空壳化”现象的出现 ;(2 )通过职工持股制度和职工监事制度的建立为职工有效参与公司治理提供制度保障 ;(3)通过“刺破公司面纱”、银行主债权人及派生诉讼等制度的导入加大债权人参与公司治理的力度。     

股东异质化视角下的双层股权结构

伴随着金融市场的发展和公司理论研究的深入,股东同质化假设正从多个维度被股东异质化现实所推翻。股东异质化突出表现为股东的利益、目的和能力的不同。正是出于对股东异质化的认识,域外国家提供了包括双层股权结构在内的其他股权结构形式。在我国,一股一权与股东异质化的结合导致了股东偏好满足成本过高、治理低效、股东与公司利益偏离等问题。双层股权通过灵活的股权配置与股东异质化需求实现了某种程度的契合,合理地引入双层股权不仅可以软化僵硬的股权结构,而且可以对股东异质化现实给予有效的回应。     

论股东派生诉讼制度

公司法确立了股东派生诉讼制度,对提高我国公司治理水平,保护中小股东利益和公司利益起到重要作用。但仍存不足,需要在今后的立法与实践中进一步完善。     

独立董事权利义务初探

独立董事制度是英美公司治理模式即一元制模式 的特色制度,其在制衡控股股东,防止内部人控制权利 滥用,保护全体股东合法权益,维护公司利益,完善公 司治理方面卓有成效。2001年8月22日中国证券监 督管理委员会颁布《关于在上市公司建立独立董事制 度的指导意见》(以下简称《指导意见》),在上市公司引     

How physicians' organizations compete: protectionism and efficiency

This article develops a framework that distinguishes four types of competitive strategies that physicians' organizations can adopt in their interactions with health plans. Two types of strategies protect physicians' incomes and autonomy from incursion and control by insurers; the other two enhance the efficiency of health care markets by controlling costs and embedding physicians' caregiving in a community of professionals. The mix of strategies that each organization adopts at any given time depends on the market conditions and regulatory policies it faces, as well as its organizational capacity. The article reviews recent developments in the field that indicate that today's markets and regulations create neither the pressures nor the capacity for physicians' organizations to adopt strategies that enhance efficiency. The managed care backlash has led to a relaxation of pressures to control costs, and the lack of a business case for quality has discouraged embedded caregiving. These developments instead have encouraged and enabled physicians' organizations to adopt strategies that protect their members from the bargaining power and micromanagement of health plans. The article therefore proposes changes in purchasing and regulatory policies to alter the pressures and improve the capacity of physicians' organizations to pursue efficiency and eschew protectionism.     

A Transaction Cost Approach to the Autonomization of Government Organizations: A Political Transaction Cost Framework Confronted with Six Cases of Autonomization in the Netherlands

The aim of this paper is to explore the relevance of some important aspects of transaction cost economics (TCE) to a better understanding and explanation of the autonomization of government organizations. As TCE, with its focus on economic efficiency, was basically developed for the profit sector, its main concepts have to be adapted for the public sector. This paper presents a 'political transaction cost' framework which emphasizes 'political rationality' and 'political efficiency'. TCE's main concepts—the transaction characteristics specificity, frequency/scale and uncertainty and its assumptions about human behaviour, i.e. bounded rationality and opportunism,—are discussed for politically governed organizations and they are related to autonomization. The results of exploratory case research into six government organizations in the Netherlands suggest that such factors as bounded rationality, opportunism, political efficiency, and social institutions may have played an important part in the autonomization of the organizations involved. It seems that strictly economic aspects were less relevant whenever a decision to autonomize was taken and a specific form of autonomization was chosen.     

Ambiguous exchanges and the police

This article analyses exchange relationships involving public police agencies and external institutions. It specifies three general forms of exchange (Coercion, Sale and Gift), then observes that, in practice, the three may not be mutually exclusive. It identifies ambiguities that may exist within exchange relationships, and discusses the implications of these for three important aspects of police performance: efficiency or value for money; equity in the distribution of police services; and the legitimacy of the police organisation. The article concludes that managing ambiguity in exchange relations has become a challenge of 21st century policing, and that police are well advised to have elaborate guidelines in place to govern their exchange relations.     

大学市场化行为的若干理论分析

大学市场化行为是人们对市场经济社会中大学行为变化的一种概括。大学市场化行为是指在市场经济社会中作为社会机构的大学遵循市场规则在与其他社会机构或个人发生商品交换关系时所产生的行为。市场经济社会是大学市场化行为产生的必要背景高等教育体制，高等教育传统等在大学市场化行为的形成过程中起着重要的影响作用。大学市场化行为对大学发展的影响首先是进一步改变了传统的大学观念，使大学更加贴近社会，贴近市场。市场化行为还促使大学之间的进一步分层、分化、使大学体系更加形式多样，丰富多彩。然而，市场化行为的增多将会助长在大学办学过程中的功利主义倾向，使大学行为染上浓厚的功利色彩。     

State‐Sponsored Homophobia and the Denial of the Right of Assembly in Central and Eastern Europe: The “Boomerang” and the “Ricochet” between European Organizations and Civil Society to Uphold Human Rights

State‐sponsored homophobia emerged in certain Central and Eastern European states in the past decade, with the denial of the right of assembly for gay pride marches. However, more recently there has been progress in the recognition of the fundamental democratic right of assembly. What accounts for this progress in fulfilling commitments enshrined in the European human rights treaties? This article proposes that the response of European organizations, in particular the Council of Europe and the European Union, as well as human rights nongovernmental organizations working in collaboration with local civil society organizations, have been critical to this progress. Previous literature has described a “boomerang” effect, in which aggrieved citizens use transnational activist networks to publicize human rights violations and put pressure on governments to fulfill their international legal commitments. To understand the functioning and effectiveness of the “boomerang” we introduce the concept of the “ricochet”—a process in which various institutions and civil society rapidly exchange information as well as political and legal argumentation. We posit that the ricochet is an integral process in the development of a European consensus on the human rights recognized by the European Court of Human Rights. Four cases have been selected for empirical analysis: Poland, Latvia, Serbia, and Russia. In analyzing the ricochet of information and argumentation between institutions and civil society, we find the consensus has been framed around the right of assembly, instead of the more contested area of human rights and sexual orientation.     

Criminal organizations and resilience

Criminal organizations inhabit dynamic environments where the pressures of competition and state opposition constantly challenge their existence. To survive and prosper, they must be resilient. Little has been written about the concept of resilience in the context of illicit organizations. This article explores possible sources of resilience for criminal organizations, focusing on institutionalised gangs. Drawing on ecological and organizational literature, resilience is defined as the capacity to absorb and withstand disruption and to adapt to change when necessary. For gangs and other criminal organizations, sources of resilience may include environmental factors and individual organizational features such as network characteristics. Resilience is not just a concept that enables criminologists to better understand the longevity of some criminal organizations; it also has implications for the strategic and operational aspects of policing such organizations, including intelligence gathering, the design of interventions and assessment of their potential unintended consequences.     

The formation of the united lineage in korea

The majority of Koreans belong to several notable family name-groups. Furthermore, most Koreans believe that, if they hold their family name in common, they have common ancestors. Today in South Korea many lineages, convinced that they have descended from a common ancestor, organize united lineages, the so-called taejonghoe. These exercise a large influence on Korean social life through various activities. This article describes the reasons that caused the development of the united lineages with hundreds of thousands of members; who the persons were who felt the need to build up such mass organizations; and how society has reacted upon the emergence of these organizations. In addition, comparisons are drawn between Korean lineages with their counterparts in China, so as to bring out some characteristics of the Korean lineage more clearly.     

The Internet, Technology, and Organized Crime

Digital technology has transformed organizational life. Developments in communications, and in information storage and retrieval, to name just two areas, have greatly enhanced the efficiency with which legitimate organizations operate. Unfortunately, the benefits of digital technology are not lost on criminal organizations, which exploit digital technology to enhance the efficiency and effectiveness of their own operations. This paper will discuss the organized criminal exploitation of digital technology, by looking at a number of illustrative cases from Asia and around the world. It will discuss the various types of “conventional” organized crime that can be facilitated by digital technology, as well as terrorism, which itself can be regarded as a special kind of organized criminal activity. One fundamental question that the paper will seek to address is whether the activities of Asian organized crime have become substantively different as a result of technology, or whether traditional organized criminal activities in Asia are merely being conducted on a more efficient and effective basis. The paper will note the transnational nature of much organized criminal activity, and will discuss mechanisms for the control of organized crime in the digital age.     

The formation of the united lineage in korea

The majority of Koreans belong to several notable family name-groups. Furthermore, most Koreans believe that, if they hold their family name in common, they have common ancestors. Today in South Korea many lineages, convinced that they have descended from a common ancestor, organize united lineages, the so-called taejonghoe. These exercise a large influence on Korean social life through various activities. This article describes the reasons that caused the development of the united lineages with hundreds of thousands of members; who the persons were who felt the need to build up such mass organizations; and how society has reacted upon the emergence of these organizations. In addition, comparisons are drawn between Korean lineages with their counterparts in China, so as to bring out some characteristics of the Korean lineage more clearly.     

Making the World Health Organization work: a legal framework for universal access to the conditions for health.

Improving global health conditions has been one of the most important and difficult challenges for the world community. Despite concerted efforts by international organizations, like the World Health Organization, great disparities in health conditions remain between developed and developing countries, as well as within those countries. The World Health Organization has achieved some successes through its Health for All strategy; however, it can and should encourage member nations to enact national and international laws to protect and promote the health status of their populations. A comparison to the lawmaking efforts in other areas by international organizations indicates that WHO may have the authority and the means to institutionalize efforts to improve global health conditions.