公司反收购与董事受信义务研究

本文论述了美国公司反收购的概念与形式;董事受信义务与反收购的价值判断;公司反收购司法之原则,董事受信义务在反收购规制中的作用。     

受压迫股东的救济路径研究:股东受信义务与法定压迫救济制度

股东保护机制是公司法的核心问题之一.由于公司所有权结构的特点,股东之间的压迫问题已成为公司管理中的重要考量.我国公司法第20条原则性地提出了对股东不得滥用权利的要求.基于该原则建立具体的股东压迫救济制度已成为公司法研究和修订中非常重要的议题,也将对提升我国的营商环境大有帮助.股东受信义务和法定压迫救济制度是国际上较为常见的两大受压迫股东的救济途径.通过比较这两大救济制度的理论与实践,斟酌利弊,深入研究两大制度间的关系及分析域外司法实践的判例,可以为我国建立受压迫股东救济制度提供可行的参考路径.     

信义义务下的美国小股东保护制度及其借鉴

由于封闭公司的异质性，多数决原则、集中控制、商业判断规则等传统的公司规范不适宜于封闭公司。为此，美国制定法和判例法不断修正和调整信义义务规范，通过宽泛地适用信义义务规则，课以公司控制者更严格的信义义务要求和标准，加重其信义义务责任，甚至类比适用合伙原则，给予小股东，特别是小型封闭公司小股东充分、有效的保护和救济，值得我们借鉴。     

The Modernization of Trustee's Fiduciary Duties in the Chinese Trust Law: A Perspective from the Uniform Trust Code in the United States

Trust is the greatest and most distinctive achievement of English law, grown and developed over the passage of time, to meet new demands towards providing new solutions to problems, resulting in its widespread and inventive use worldwide. Although the trust system was introduced by the enactment of a specialist Trust Law of the People’s Republic of China in 2001, there is no significant growth in the use of the trust system in civic life. The personal fiduciary relationship between the settlor and trustee is the foundation of a trust. The trustee has an affirmative equitable duty to act solely in the interest of the beneficiaries. Whether people can rely on the trust system and use it universally is highly dependent on a trustee’s fiduciary duty. In the United States, thirty-four states and the District of Columbia have adopted some substantive provisions of the very valuable Uniform Trust Code (UTC). To promote the development and appropriate application of Chinese Trust Law, this article examines the differences between trustee obligations under the American UTC and Chinese Trust Law, and then proposes the amendment suggestion for Chinese Trust Law. This article consists of five parts. In addition to the Introduction, Part I of this article overviews the provisions of a trustee’s fiduciary duties in Chinese Trust Law. Part II discusses and compares the differences and similarities on trustee’s fiduciary duties in Chinese Trust Law and the UTC. Part III explores the comparative consideration of a trustee’s fiduciary duties, and provides the proposals for legal reform. Finally, this article brings forward a brief conclusion.     

衡平法外的受信义务——析董事于新《公司法》下之“忠实义务”

修订后的《中华人民共和国公司法》于2006年1月开始实施,其目的在于给投资者营造更为有利的法治环境,并进一步落实相关法律责任的追究与相关法律执行的透明度。新《公司法》将董事受信忠实的概念第一次引入到中国法中。受信概念源于普通法系中的衡平法系统,但普通法系统与衡平法系统在法学与管辖上并存之双轨制度在中国大陆法系中却不存在。本文将由此探究以单纯书面立法的方式引入衡平法中受信概念的可行性。本文认为,只要在这个概念被转化为一个法律概念前对其作出详尽的定义,受信理论的衡平法特性并不会真正阻碍其转化为我国的法律概念。为对上述观点作出阐释,文章以新《公司法》中禁止董事与公司进行自我交易这一具体规定为参照,结合案例讨论了通过对境外司法实践的借鉴、立法机关衡平法技巧的培养,以及更仔细地考察现行的国内法则,来帮助弥补单单引入一个空洞的受信概念不足的可能性。     

The Impact of Officer and Agency Characteristics on the Likelihood of Arrest in Domestic Violence Situations among Rural Law Enforcement Officers

Domestic violence cuts across all demographic groups. The factors related to why police officers arrest in some domestic violence situations but not others have been often studied. Little research, however, has been conducted on the arrest views of rural police officers. One hundred seventy line officers in six rural Midwestern counties were surveyed to determine the impact of officer personal characteristics and agency type on arrest decisions in various hypothetical domestic violence scenarios. First, the same situational factors appeared to be important in shaping the arrest decision in domestic violence calls of rural officers as have previously been found with urban officers. Second, the characteristics of officers and the type of agency had some impact on the likelihood of arrest, particularly if there was evidence of a physical assault. Third, the presence of evidence of a physical assault helped shape the arrest decisions of rural officers. Fourth, situational factors were more important than officer characteristics and the type of agency. Nancy Hogan and Shannon Barton contributed equally to the paper. The authors thank Janet Lambert for editing and proofreading the paper. The authors also thank the anonymous reviewers for their comments and suggestions.     

Natural Law,Basic Goods,and Fiduciary Altruism

Even though fiduciary duties take the highest position in the spectrum of legal altruism, and legal fiduciary altruism sometimes differs from moral fiduciary altruism, natural law morality is not necessarily useless in helping to explain, determine, and justify concrete rules in fiduciary law. Five specific inspirations, in addition to divergences, can be drawn by a closer look at the seven basic goods of John Finnis’ natural law theory. First, the basic good of life may help to determine the boundary of the best interest test under the duty of loyalty. Second, the basic good of play, in particular the distinction between business community and play community may help to justify the separate treatment between civil agency and commercial agency regarding the unconditional power of immediate termination. Third, practical reasonableness may help to explain the rule against set-off under the duty of no conflict. Fourth, different cultural notions of sociability may lead to distinct understandings with regard to the no-profit rule. Fifth, different attitudes towards knowledge in various religious beliefs may create distinct understandings about the burden of informed consent.     

Shareholder Coordination Costs, Shark Repellents, and Takeout Mergers: The Case Against Fiduciary Duties

When a bidding corporation succeeds in obtaining voting control of a target corporation through a hostile tender offer, many commentators argue that it is unfair to allow the bidder to exercise its voting power to set the price terms of a second-step takeout merger in which the bidder purchases the shares of the remaining target shareholders. This concern is inappropriate because it treats a unitary acquisition between adversaries as if it were two separate transactions–the second of which involves abuse of power by fiduciaries–and also because it assumes that shareholders of the target corporation are incapable of protecting themselves from the power of a successful bidder. Moreover, imposition of fiduciary rules may impose either prohibitive costs or absolute barriers to some takeovers, even if such transactions would be wealth producing. While there is a risk that some takeovers may exploit the “prisoner's dilemma” facing target shareholders threatened with an unattractive takeout threat, target shareholders are capable of responding to that threat with devices to coordinate their response. So-called “shark repellent” amendments that raise the proportion of votes required to approve second-step mergers or that limit the terms of such mergers can function as coordination devices to alleviate the prisoner's dilemma. Commentators' fears that such devices may unduly burden the market for corporate control appear to depend to a large extent on unfounded assumptions that all takeovers are wealth producing and that takeovers are never motivated by potential gains flowing from exploitation of the lack of coordination among target shareholders. However, empirical studies indicate that adoption of such coordination rules can benefit target shareholders and that it is unlikely that shareholders will approve voting rules so restrictive that they would preclude wealth-creating acquisitions. The usual notions of shareholder apathy are simply inapplicable to takeout mergers.     

Ignorance of the Criminal Law,and Duties to Avoid it

‘Ignorance of the law is no defence,’ so we are told from an early stage in our legal studies. Or, to be more accurate, ‘ignorance of the criminal law is no defence to a criminal charge.’ That appears to be the rule in this country, apart from a couple of well‐established exceptions and another possible one. I will argue that it is a preposterous doctrine, resting on insecure foundations within the criminal law and on questionable propositions about the political obligations of individuals and of the State. In developing these arguments, I will draw attention to the differing problems of ignorance of the criminal law in three broad areas – regulatory offences, serious crime, and offences of omission – with a view to suggesting that there is a great deal more that the State needs to do if the issue of ignorance of the criminal law is to be dealt with adequately and fairly. I begin by scrutinising the relevant rule of English criminal law and the justifications offered for it. I then go on to situate the ‘ignorance‐of‐law’ doctrine in the context of the principle of legality and the rule of law, those bastions of liberal criminal law theory. Part three then explores the three broad areas of the criminal law, and parts four and five carry the debate into the political obligations of individuals and of the State in these matters.     

国有企业社会责任特殊性的法学心133考

国有企业社会责任与一般企业社会责任有着根本区别,是目前推进我国企业社会责任的关键问题.国有企业由于其本身"公益性"与"营利性"并存的性质,决定了其社会责任的内涵具有特殊性.从法律角度来看,应该通过产权制度明晰化、社会责任内涵法制化、评价体系科学化、监督主体独立化和多元化等多种途径来确保国有企业社会责任的有效实现.     

Sexual Assault Training of Law Enforcement Officers

Abstract

The importance of proper response to victims of sexual abuse or assault has been well documented. However, despite their prominence as responders, little research has been conducted on training law enforcement officials to conduct this aspect of their jobs effectively. We describe results of a statewide survey of the adequacy of law enforcement officers' preparation to respond to victims of sexual assault. Results revealed a significant need for greater training on the topic, as well as a number of potential positive impacts of additional training and education, including feelings of better preparation, greater collaboration with external resources, more likelihood of victim participation in investigation, and more cases being brought to prosecution. Based on the results, we present a model of proposed benefits of additional training for police officers in sexual assault.     

Corporate Mobility and Company Law

Globalisation has given commercial parties more freedom to choose the company law system that best suits their private needs. The growing range of techniques to facilitate choice between systems of company law reshapes the mandatory/enabling debate in countries where corporate mobility is a relatively new business phenomenon and where the past focus has mostly been on degrees of flexibility within domestic law. This article examines relocations, both out of and into the UK, as a source of learning on market preferences with respect to company law and on vulnerabilities. It considers the wider policy implications for the development of company law of more freedom of choice between company law systems. It concludes with a call to explore the potential for more optionality within company law to counter the rise of choice between systems of company law.     

Fiduciary Duty under the Microscope: Stewardship and the Spectrum of Pension Fund Engagement

UK pension fund trustees’ interpretations of their fiduciary duties may shape pension fund approaches to corporate stewardship and engagement envisioned by the UK Stewardship Code. Data from interviews with pension fund trustees, executives, investment intermediaries and pensions experts reveals interpretive pluralism of the concept of fiduciary duty in the area of pension funds. This article develops a model identifying the spectrum of pension fund engagement, linking interpretations of fiduciary duty to intensity and methods of engagement in practice. The findings help disambiguate the concept of ‘Fiduciary Duty’, highlighting the practical challenges of Stewardship Code application. These insights are relevant to the ongoing revisions of the Stewardship Code and policy clarifications of the nature of fiduciary duty by the UK Financial Conduct Authority. The paper encourages trustees, regulators and others to consider what role pension fund trustees should have in stewardship, which may not be directly relevant to their fiduciary duties as trustees.     

论道路交通安全法上的地方事权

为了有效提升地方对道路交通的治理能力,应当在未来的《道路交通安全法》修改中认真梳理地方事权,并通过明确授权方式,允许地方性法规有更大的自决创制空间。这种可控的适度分权模式,比较契合我国立法上实行的集权下的分权模式。     

Race and Officer Decision Making: Examining Differences in Arrest Outcomes between Black and White Officers

Since the 1960s, one of the major reform efforts in law enforcement has been to increase the number of Black Americans within police agencies and on patrol in the streets. The general premise behind these efforts has been that increased diversity will improve police–community relations and will decrease biased police behavior, particularly against Black citizens. Policies seeking to reform policing through increasing the numbers of African American officers have been implemented with little empirical evidence that an officer's race (or ethnicity) is actually related to their behavior towards citizens, in particular arrest decisions. Using data from systematic social observations of police–citizen encounters in Cincinnati, OH, this study examines the influence of officer race on arrest outcomes, focusing on the behavior of Black officers. Findings suggest that officer race has direct influence on arrest outcomes and there are substantive differences between White and Black officers in the decision to arrest. In general, White officers in our study were more likely to arrest suspects than Black officers, but Black suspects were more likely to be arrested when the decision maker was a Black officer.     

Responses of Police Officers to Cases of Officer Domestic Violence: Effects of Demographic and Professional Factors

Although the perpetration of domestic violence by police officers has received more attention lately, little research has examined the topic. This study investigated common responses of police officers (n = 1108) to officer-perpetrated domestic violence case scenarios and the relationships between officer characteristics and such responses. Common responses included encouraging the victim to file a formal report, assisting in finding help for domestic abuse, and referring the offending officer to an employee assistance program (EAP) or counselor. Arrest was a likely response when officers were asked to imagine they witnessed a victim’s injuries and heard statements about an assault in a case scenario. Supervisors had the most victim-supportive responses, suggesting they may be very good trainers of front-line officers.