The transfer of property rights by theft: an economic analysis

This article studies the voluntary transfer of property that had been stolen—a topic almost unexplored in the law and economics literature. The question is whether a buyer of a stolen good should obtain title to the good if he/she has purchased it in good faith. As described in the article different jurisdictions treat this issue differently. The traditional theory suggests that there is a trade-off between the costs of protecting the good and the costs of verifying the ownership. However, as shown, the rule of law concerning this issue significantly affects parties’ incentives. Specifically, it is shown that a rule of law where good faith is irrelevant in determining the issue of property rights Pareto dominates a rule where good faith may protect an innocent buyer. Thus, an owner of an asset will spend more resources on protecting his property and potential buyers will incur higher costs in order to verify the ownership when good faith is decisive for the transfer of property rights.     

论违规披露、不披露重要信息罪的可能性失灵——以收益权凭证交易为例证

信息披露制度是金融监管法律制度的核心内容,需要刑法保护。为确保刑法调整信息披露制度的有效性,"违规披露、不披露重要信息罪"在原《刑法》条文的基础上,对主体、客观行为和行为结果都进行了修订完善。新的金融产品的出现使"违规披露、不披露重要信息罪"出现了漏洞,面临可能性失灵的现实问题,收益权凭证交易这一新型合成型资产证券化产品就是例证。创新资产证券化产品,监管部门要依据其交易特征,出台相应监管规则,注重完善信息披露制度,防止"违规披露、不披露重要信息罪"的可能性失灵。     

When Worlds Collide: Enforcing United Nations Security Council Asset Freezes in the EU Legal Order

Asset freezes are since 2000 being applied by the United Nations (UN) Security Council (SC) to non-state actors. This came about as a 'mutation' of the sanctions program initiated by Resolutions 1267 (1999), 1333 (2000) and 1390 (2002): currently the targets are only supected terrorists or terrorism financiers.
This 'mutation' has created perplexities and problems, namely for the EU, which enforces UN SC Resolutions by a combination of first and second pillar methods. The main problem concerns issues of fundamental rights, currently being litigated.
The debate on the compatibility of the current practice of UN SC asset freezing within EU law takes place amidst a fundamental lack of clarity as to the exact purposes and operational objectives of such freezes. It is argued that this practice amounts to an ad hoc (para-)criminal procedure measure, enacted by political bodies rather than courts, and without judicial oversight.
The current UN SC practice of asset freezing against non-state actors breaches the right to judicial review, as well as the presumption of innocence. If this practice it is to continue at all, methods that make it fully compatible with the rule of law must be adopted. Especially, their renewal ad aeternum should not be possible.     

中国古代法与现代民法物权制度比较研究——兼及《中华人民共和国物权法（草案）》的相关规定

对中国古代法和现代民法物权制度的相关内容进行比较可以发现,中国古代法存在着类似于现代民法动产与不动产的区分,而土地所有权制度则与现行民法有着较大的区别;明清法律关于拾得人可以获得报酬的规定,可以为确立遗失物拾得人的报酬请求权提供历史的依据;古代法并非没有善意取得,只不过其适用范围很窄;土地承包经营权实际上是古代永佃制和"一田两主"习惯的结合;古代的"典"在现代市场经济条件下仍然有其价值,<物权法>应当规定典权制度.     

中国资产证券化的法律环境分析及立法选择

"资产证券化"是20世纪70年代以来国际金融领域最重要的金融创新。近年来,在中国实施资产证券化的呼声日益高涨。但是,就资产证券化的现实法律环境而言,在证券化基础资产的转移、SPV的设立和定位、资产支持证券的发行和上市以及信用增强等资产证券化的各个环节中,还存在诸多的法律障碍或者法律的空白。为消除资产证券化的市场需求与我国现行法律制度的紧张,必须尽快构建起一个既体现资产证券化的基本规律,又符合我国国情的资产证券化法律机制。     

Financial instruments entail liabilities: Ether,bitcoin, and litecoin do not

The financial assets that are subject to major EU financial legislation (i.e. (designated types of) financial instruments) have traditionally been defined in a largely exemplary and circular manner. The recent proliferation of ‘non-traditional’ financial assets, such as cryptocurrencies and stablecoins, is increasingly challenging the viability of these pragmatic financial asset definitions. Through the analysis of the technologies and functionalities underpinning non-traditional financial assets, legal scholarship has aimed to categorize novel assets within the existing framework of financial asset definitions. Although a solid understanding of e.g. distributed ledger applications and cryptography appears a prerequisite for future policy and legislative interventions, contemporary EU financial legislation is mostly indifferent to the technologies on which financial assets may be wired. Categorizations based on the purposes that non-traditional assets may serve (i.e. payment, utility, and investment) are more relevant to financial law, but suffer from subjectivity because they depend on the asset usage by the asset holder. Against this backdrop, this paper proposes a novel systematization of non-traditional assets that is based upon the conceptual substructure of the assets within the scope of EU financial legislation. More specifically, this paper submits that, irrespective of underlying technologies and functionalities, all assets that are subject to major EU financial legislation have a conceptual common denominator: they entail the liability of an entity and, hence, have intrinsic value. The proposed categorization singles out a well-defined group of novel financial assets that is not subject to EU financial law (i.e. assets that only have extrinsic value). Different from functionality- and technology-based categorizations, the suggested approach allows to eradicate some ambiguities that are present in the existing taxonomies. By exploring the conceptual common denominator of the financial assets that are subject to EU financial legislation, this paper aims to foster debate on the circular and exemplary character of financial asset definitions in EU financial legislation in general and the relation of these definitions to novel types of financial assets in particular.     

Civil asset forfeiture, equitable sharing, and policing for profit in the United States

Purpose

Critics of asset forfeiture claim that forfeiture laws create financial incentives that inappropriately influence police behavior. The present study examines the relationship between measures of the financial incentive and legal burdens for civil asset forfeiture on federal equitable sharing payments to local law enforcement to determine whether police behavior is affected by different statutory incentives for forfeiture activity.

Methods

Using LEMAS and DOJ forfeiture data, this study addresses some of the limitations of previous research by using a multi-year average for forfeiture activity, an improved measure of financial incentives for law enforcement, and multiple measures of statutory burdens to law enforcement to determine the impact of forfeiture laws on forfeiture activity.

Results

Consistent with anecdotal reports and limited prior research, findings indicate that agencies in jurisdictions with more restrictive state forfeiture laws receive more proceeds through federal equitable sharing.

Conclusions

Results suggest that state and local law enforcement agencies use federal equitable sharing to circumvent their own state forfeiture laws when state laws are more burdensome or less financially rewarding to these agencies, providing additional evidence that police operations are influenced by financial incentives.     

MiFID II – A radical contribution to the development of data law?

Away from the hubbub about HFT (High Frequency Trading) a quiet storm is blowing in to the EU that will radically change securities trading in bonds, OTC derivatives and other asset classes. The rules, called MiFID II,² top off the alphabet soup of an extensive new rule book that, after the European Parliament's ‘Super Tuesday’ on 15 April 2014, is finally set to become law. Radical changes are afoot!     

验资机构对验资委托人的民事责任及其认定

验资机构和验资委托人之间的委托合同以委托人与验资机构之间的相互信任为前提,属于双务、有偿合同、不要式和诺成的特别委托合同。验资机构对验资委托人的民事责任存在契约责任与侵权责任竞合的情形。损害赔偿是验资机构对验资委托人承担民事责任的主要方式。由于委托人或第三人的原因而导致验资机构出具的验资报告与实际状况不符,委托人或第三人应当承担相应的责任。对于委托验资合同的免责条款的效力,应当从我国现行合同立法的规定和合同权利义务以及风险分配的合理性两个方面出发加以认定。     

Learning to be A Peacemaking Lawyer: Law Student Perspectives on Building Peacemaking into Law School Curricula,Building Paths to Practice for New Lawyers,and Interdisciplinary Training

From our perspectives as students, we reflect on the teachings of Lawyer as Peacemaker, a Winter 2015 course taught at UCLA School of Law — the school's course devoted to peacemaking lawyering. Utilizing our newfound peacemaking worldview, we share our collective reactions to the Lawyer as Peacemaker course and the ten articles in the Family Court Review Special Issue on Peacemaking for Divorcing Families. We then advocate for integrating peacemaking into law school curricula and experiential learning offerings and make recommendations on how law schools today can prepare students to practice peace.

Key Points for the Family Court Community:
• This article is a collaborative work product of three students who come from an array of work experience, backgrounds and interests and from their newly founded peacemaking worldview, the three students collaboratively analyzed ideas presented in the Lawyer as Peacemaker course and the articles from this issue.
• The peacemaking mediation allows the parties more control over their legal disputes and allows the control of the costs that come with litigation.
• Peacemaking involves a holistic and collaborative method, involving mental health professionals to financial advisors as well as legal professionals.
• However, peacemaking skill courses are not readily available to many law students while studying in law school.
• This valuable asset should be made available more extensively to law students interested in family law.

     

论资产证券化的有价证券制度基础

在英美法系财产法上,财产被区分为具体物和抽象物。二者之间的优势互补推动了有价证券的发展,从而使财产的证券化成为现代财产法至为重要的发展趋势之一。资产证券化是现代财产法财产证券化历程上最高级、最复杂、最完善、包容性和灵活性最强的制度结晶。资产证券化是由两个阶段、四项主要制度构架起来的有机体系,克服了普通公众化有价证券制度的局限性。     

对霍菲尔德法律概念论的逻辑分析

霍菲尔德,美国著名的法学家,以对法律概念进行逻辑分析而闻名于世。他认为,法律中最基本的概念“权利”和“义务”至少可以分析为下面8个相互关联的概念:即权利、无权利、特权、义务、权力、无权力、豁免和责任。霍菲尔德的分析不仅得到了学术界的肯定,而且对美国财产法的发展有着重要的作用。我国学者对霍菲尔德的法律概念论有一些介绍,与其他的介绍性文章不同之处在于:本文用逻辑的方法对霍菲尔德的法律概念进行了详细的分析,揭示了这八个概念的具体含义。     

The Division of Marital Assets Following Divorce

In this paper, several possible bases for post-divorce asset division are examined from an economics-of-law perspective, focusing in particular on the incentives for opportunistic behaviour set up by the use of reliance, restitution, partnership, rehabilitation, and needs-based approaches. The current focus of marital law in England and Wales on a mixture of needs-based and contractual elements in divorce settlements is vulnerable to the charge that behaviour is encouraged in both males and females that is predatory in nature. The contractual uncertainty that follows from this may well deter some good quality marriages that might otherwise occur. The paper explores the case for using an expectations-damages approach, given that this can deter opportunistic divorce. The conclusions favour an updated and flexible view of the marriage contract. The paper draws extensively on the American literature covering property settlements.     

债权让与的优先顺序与公示制度

债权让与的优先顺序,即债权让与对抗债务人以外第三人的效力问题,系债法上分歧最大的问题之一,事关保理、资产证券化等现代债权融资交易发展,且为拓宽中小企业、农户等弱势当事人融资渠道的关键因素之一,具有深层次社会经济意义。运用“制度内情境分析法”,依次考察让与主义、通知主义、登记主义三种主要制度对各方当事人及第三人的影响,可发现登记主义更为公平、更有效率。各国的历史与经验证据支持此结论。中国合同法对此未作规定,存在不足。物权法新创应收账款质押登记制度,越来越多的债权转让亦可能在该系统登记。未来有必要对债权完全让与及担保性让与采统一登记制度。债权让与登记制,表明公示原则为适用于一切财产权转让的基本原则,性质为财产法总则上的原则。     

论我国《行政许可法》中的信赖保护原则

《行政许可法》在我国第一次以法律的形式确立了“信赖保护原则”,它体现了“诚信政府”的理念,对于提高行政机关及其工作人员诚信意识,实施行政许可行为时言必信、行必果,取信于民具有重要作用。公民、法人或者其他组织因信赖行政机关作出的行政许可决定而从事的活动受到法律保护,没有违法行为,不得撤销。若为公共利益出发,不得不变动行政许可,在相对人无过错时,必须给予信赖相对人财产补偿。对相对人的信赖利益的保护方式主要有两种,即存续保护和财产保护。     

《联合国反腐败公约》资产追回机制与我国刑事诉讼法的完善

《联合国反腐败公约》是联合国历史上第一部指导国际反腐败斗争的法律文件 ,它包含了大量的刑事司法规定 ,其中核心部分是资产追回机制 ,而这方面我国刑事诉讼法的规定很欠缺。为了加强反腐败的力度以及完善我国刑事诉讼法 ,有必要参照《公约》对我国刑事诉讼法作相应的修改 ,以期更好地开展反腐败的国际合作 ,最大限度地追回腐败犯罪所得。     

Prevention of money laundering and the role of asset recovery

The purpose of this paper is to examine the increasing emphasis of the UK anti-money laundering (AML) legislative framework, on the financial arrangements of criminals. Our qualitative study engaged key stakeholders from the AML environment through a series of focus groups. This included law enforcement; accountants; prosecutors; bankers and, importantly, ex-offenders. We argue that the inclusion of the views of a traditionally hard to reach group of ex-offenders, adds significantly to knowledge and understanding about effectiveness of AML. The research findings suggest that, at first glance, the focus on asset recovery has been successful. However, our respondents shared with us areas of tension and inconsistencies in application of the law, in particular between police and the courts. For example, whether it was better to prosecute the predicate offence  separately or in addition to the offence of money laundering; or whether to pursue criminal or civil recovery. We further find that criminals have been able to use their knowledge to circumvent the system, suggesting that greater effort is needed to promote cooperation, rather than competition, in successfully detecting and prosecuting offenders.     

个人信息作为企业资产——企业并购中的个人信息保护与经营者权益平衡

企业并购是厘定个人信息权利与经营者权益边界的重要场景之一。在单纯的股权收购、企业的合并、分立与形式变更等情形下,原则上不产生个人信息保护的问题。在资产收购的情形下,则涉及个人数据的转让,但此时应考虑收购双方及目标公司债权人的合理利益。在美国法与欧盟法上,对于资产收购均存在数据传输无需用户同意的例外处理机制。这些机制的核心是数据主体与企业之间的利益衡量,一方面从数据主体的利益出发,考虑在资产收购后数据原本的使用目的是否能够实现;另一方面则从企业的利益出发,考虑其对于数据交易是否具有合理利益。在并购双方对于用户数据转让存在合理利益的基础上,应允许企业在并购中转移个人数据,但应给予用户事先或事后作出相反选择的权利。     

Anticipated impact of the 2009 Four Corners raid and arrests

Archaeological looting on United States federal land has been illegal for over a century. Regardless, the activity has continued in the Four Corners region. This paper discusses how the 1979 Archaeological Resources Protection Act (ARPA) can be viewed as sumptuary law, and within a sumptuary context, subversion can be anticipated. An analysis of 1986 and June 2009 federal raids in the Four Corners will exemplify this point by identifying local discourses found in newspapers both before and after each raid, which demonstrate a sumptuary effect. Ultimately, this paper concludes that looting just adapted, rather than halted, after each federal raid and that understanding this social context of continued local justification and validation of illegal digging is a potential asset for cultural resource protection.     

The Value of Waiting in Lawmaking

Political actors and legislative bodies often invoke net present value calculations to support proposed legislative change. This paper explores the idea that adopting a law is like investing in a productive asset to identify possible misleading applications of net present value calculations. Investment involves incurring a present cost in the expectation of future benefits. Legal systems can be regarded as making investment decisions when incurring present lawmaking costs that will generate benefits over time. Lawmaking investments share, in varying degrees, three important attributes with other investment decisions. First, lawmaking costs cannot be recovered if the enacted rules prove to be ineffective or undesirable at a later time. That is, lawmaking investments are partially or completely irreversible. Second, there is often uncertainty over the future benefits of the legislation. Chosen rules may prove ineffective or changes in the social or economic circumstances may render them obsolete over time. Third, like any investment decision, timing is an issue for lawmakers to determine: lawmaking innovation or revision of current rules can be postponed. Often delays in such investment decisions come at a cost, given the forgone benefits of the investment in the immediate future. This paper focuses on the value of waiting in lawmaking, illustrating the interaction among the above factors in identifying the conditions that determine the optimal timing of legal intervention. The basic model is followed by two extensions. In the first extension, we allow for some learning and informational benefit from the immediate implementation of the new law. In a second extension, we allow for political time preference to affect the lawmaking choice.