信托的功能--资本运营视角下的探析

资本运营是现代社会创造财富的重要手段 ,通过法律制度的设计促进资本运营就成为现代商事法制重要目标之一。在公司制和代理制下的资本运营都存在交易成本比较高的弊端。相对于代理制而言 ,信托制度提高了资本运营的效率 ;相对于公司制而言 ,信托促进了资本运营的灵活性和创造性。因此 ,在资本运营的视角下 ,信托的经济功能就在于降低了交易成本和提高了商业效率。信托的功能在企业资本运营的过程中得到了充分体现 ,并表现为多种灵活的形式。     

Equating U.S. Tax Treatment of Dividends and Capital Gains for Foreign Portfolio Investors

The U.S. tax law equates the tax rate on dividends and long‐term capital gains on stock owned by U.S. citizens and residents. However, the taxation of these two types of rewards in the hands of foreign portfolio investors remains dramatically different from each other, with the capital gain being fully exempt. Several reasons support this article's proposal to no longer exempt these gains. Extending finance theory and prior normative tax research, this article argues that foreigners’ portfolio dividends and capital gains should be taxed in the same manner because they are economically equivalent and emanate from the same source. Three recent empirical developments also support repeal of the foreigner's exemption. First, there is now extensive use by U.S. corporations of stock repurchases—which are taxed to selling shareholders as capital gain—as a form of corporate payout that was in the past primarily accomplished through dividends. Second, foreign ownership of U.S. stocks has continued to increase, with an estimated one‐third of these stocks owned by foreigners. Third, the modern tax compliance environment—including aspects of the Foreign Account Tax Compliance Act that apply to foreigners—reduces past congressional and academic concerns about enforcing the taxation of foreigners’ portfolio gains.     

A New Tax on Income from Capital in the Netherlands

The Dutch income tax is until now based on the source theory. As a consequence capital gains are not taxed; this principle forms the basis of many schemes for tax avoidance. To cope with this problem the Government proposes an analytic income tax at a rate of 30% assuming a fixed annual yield of 4%. According to critics the proposal will lead to a modest taxation on capital gains but also to various forms of tax arbitration and a tax justice deficiency.     

我国国有资本收益若干法律问题研究

我国于1994年开始进行国有资本收益制度改革并取得了一些成效,但从实践来看,仍然存在收益分配范围过窄、收缴主体不明、比例过低等诸多问题,亟需进行相应的修改完善,使国有资本收益制度在保障国家作为国有资本投资者应当享有的权益、实现国民收入公平分配方面的作用真正得到发挥。     

纠纷成本与诉讼效益分析

本文试图用经济学的基本理论和方法对纠纷的成本与诉讼效益做一分析。纠纷妨碍了交易和效益 ,增加了成本。在诉讼中和通过诉讼 ,做到尽量避免纠纷对收益的不利影响 ,努力减少纠纷成本 ,并影响和减少纠纷的数量 ,这就是诉讼之效益。     

职工参与公司控制质疑——对“共决制”的理论与制度分析

职工参与公司控制会改变股东控制公司的传统公司治理模式。主张职工参与公司控制的学者认为 ,现代企业的职工不是向企业提供简单劳动 ,而是对公司做出了人力资本投资 ,因此 ,应该给与职工与股东相同的公司控制权。但给与职工控制权可能会增加公司集体决策的成本 ,不利于公司提高经营效率 ,“共决制”本身固有的弱点也可能使其无法达到预期的目标。德国的“共决制”与其公司治理特点有直接关系 ,不考虑我国的实际状况 ,盲目引进“共决制”可能会不利于我国公司的发展     

Australia: Capital gains on sale shares treated as trust income

The testator, in his will trust, provided that the widow wouldreceive the income from the trust for her lifetime with a powerfor the trustee to pay part of the capital to her if the incomewas shown to be insufficient for her reasonable needs. The residueof the will trust was to pass to the testator's children. After the widow's death, an application was made by the residuarybeneficiaries claiming a breach of trust on the grounds thatthe trustee had treated capital gains on the sale of sharesin the estate as income. In his will, the testator had providedthat the trustee might, in his discretion, determine whetherreceipts     

企业家技术创新力的经济学分析

企业的技术创新活动是在企业家（企业经营者）的领导、推动下进行的。企业的技术创新能力与企业家的创新能力和创新动力有密切关系,它们的整合构成了企业家的创新力。从经济学的角度看,企业家从事创新活动的动力来自创新活动对于企业家的效用,即他在创新活动中得到的收益与付出的成本之差。因此,增加企业家的创新收益,减少其创新成本是提高他们的技术创新力的基本方法。     

On the employment effect of noncompliance with the minimum wage law

A major result of the economic literature on minimum wage noncompliance is that a competitive employer who opts not to comply with the minimum wage law will employ less labor than he would have in the absence of a law. The reason for this is that noncompliance entails the risk of getting caught and punished, consequently raising the marginal cost of labor to the employer. An implicit assumption underlying this result is that noncompliance does not affect the free market wage rate facing the competitive employer. The present note shows that noncompliance will bring about a fall in the market wage rate and that if employers and workers are risk neutral, the market wage rate will fall in a way that leaves the marginal cost of labor intact. Consequently, the enactment of a minimum wage law, if not accompanied by sufficient enforcement to induce compliance, will have no effect on the level of employment.     

Can information change public opinion? Another test of the Marshall hypotheses

U.S. Supreme Court Justice Thurgood Marshall offered his opinion regarding the utility of public opinion polls as a tool for assessing the “evolving standards of decency” regarding capital punishment. His arguments became known as the Marshall hypotheses and spawned a considerable body of empirical testing. The three Marshall hypotheses are: (1) support for capital punishment is inversely associated with knowledge about it, (2) exposure to information about capital punishment produces sentiments in opposition to capital punishment, but (3) exposure to information about capital punishment will have no impact on those who support it for retributive reasons. The results of previous tests of these hypotheses were somewhat mixed but supportive. None of these studies, however, examined the effects of change in knowledge levels with changes, if any, in death penalty attitudes and beliefs as needed for a more complete test of the Marshall hypotheses. The present study addressed this shortcoming. The results provided mixed support for these three hypotheses. That is, death penalty supporters were somewhat less informed than death penalty opponents; exposure to death penalty information and knowledge gains tended to be associated with attitudinal change in a directions suggested by these hypotheses; but, retributivists' attitudes toward and beliefs about capital punishment were not any more resistant to change than were the attitudes and beliefs of non-retributivists.     

Exceeding powers of appointment: Re the Toland Trust, the Pennywise Trust and the Sequential Trust [2005] JRC 142

The general intention of the Toland Trust, a discretionary settlementgoverned by the law of Jersey, was expressed in a letter ofwishes that the immediate family of the settlor should benefit.A general power of appointment was given to the trustees. Considerable capital gains     

全国社会保障基金境外投资收益的税收问题探析

从2006年年底开始,全国社会保障基金境外投资的大门正式开启,由此引起的该基金境内外投资收益税负不均的问题,不仅违反了税收中性原则,而且不利于该基金的保值增值。对此,主张"国家及其财产豁免"并不可行。可行的方法是将其纳入到双边税收协定中,通过对将该基金的股息、利息以及资本利得适用协定的特别条款,从而免除来源国的征税。     

对侵犯知识产权犯罪案件中“违法所得”的确认

＂违法所得＂是知识产权刑法及司法解释中的常见词语,但理论、实践界对＂违法所得＂的理解不尽相同,有的将其与＂销售金额＂联系起来,有的认为是扣除一定成本的利润;就是利润本身也存在不同的解释,如销售利润、净利润等。法律上的不确定给侦查办案增添了难度,因此,在法律层面必须明确＂违法所得＂的真正内涵,在不同案件中的具体核算方法。公安机关办理相关案件,取得＂违法所得＂证据的过程中,要重点注意现场处置;有价值会计资料信息提取;针对性的讯问及从交易双方获取＂违法所得＂记录等等。     

Capital cost reimbursement to community hospitals under Federal health insurance programs

Issues in current capital cost reimbursement to community hospitals by Medicare and Medicaid are described, and options for change analyzed. Major reforms in the way the federal government pays for capital costs--in particular substitution of other methods of payment for existing depreciation reimbursement--could have significant impact on the structure of the health care system and on government expenditures. While such reforms are likely to engender substantial political opposition, they may be facilitated by broader changes in the reimbursement system.     

Share Capital and Creditor Protection: Efficient Rules for a Modern Company Law

This article examines the case for rules of company law which regulate the raising and maintenance of share capital by companies. The enquiry has practical relevance because the content of company law is currently under review, and the rules relating to share capital have been singled out for particular attention. The existing rules, which apply generally, are commonly rationalised as a means of protecting corporate creditors. The analysis considers whether such rules can be understood as responses to failures in the markets for corporate credit. It suggests that whilst the current rules are unlikely, on the whole, to be justified in terms of efficiency, a case may be made for a framework within which companies may 'opt in' to customised restrictions on dealings in their share capital.     

Role of budget impact in drug reimbursement decisions

There are three known criteria that underlie drug reimbursement decisions: therapeutic value, cost-effectiveness, and burden of disease. However, evidence from recent reimbursement decisions in several jurisdictions points to residual, unexplained variables, among which is budget impact. Budget impact refers to the total costs that drug reimbursement and use entail with respect to one part of the health care system, pharmaceutical care, or to the entire health care system, taking into account the possible reallocation of resources across budgets or sectors of the health care system. The economic and equity rationale for carrying out budget impact analyses is opportunity cost, or benefits forgone, measured in terms of utility or equitable distribution, by using resources in one way rather than another. In other words, by choosing to draw down the budget in one way, decision makers forgo other opportunities to use the same resources. Under a set of unrealistic assumptions, cost-effectiveness analysis accounts for opportunity cost while conveying to the decision maker the price of maximizing health gains, subject to a budget or resource constraint. However, the underlying assumptions are implausible, particularly in the context of pharmaceutical care. Moreover, budget impact analysis is more useful to the decision maker than cost-effectiveness analysis if the objective is not to maximize health gains subject to a budget or resource constraint, but to reduce variance in health gains. With respect to equitable distribution, budget impact analyses lay bare the individuals or groups who lose out - those who bear the opportunity cost of spending resources in accordance with one decision rule rather than another.     

Banking reforms and the evolution of cost efficiency in Indian public sector banks

This paper analyses the trends of cost efficiency and its components across Indian public sector banks (PSBs) during the post-deregulation period spanning from 1992/1993 to 2007/2008. The study also examines the issue of convergence in cost, technical and allocative efficiency levels of Indian PSBs. The empirical results indicate that deregulation has had a positive impact on the cost efficiency of Indian public sector banking industry over the period of study. Further, technical efficiency of Indian PSBs followed an uptrend, while allocative efficiency followed a path of deceleration. We note that in Indian public sector banking industry, the cost inefficiency is mainly driven by technical inefficiency rather than allocative inefficiency. The convergence analysis reveals that the inefficient PSBs are not only catching-up but also moving ahead of the efficient ones, i.e., the banks with the low level of cost efficiency at the beginning of the period are growing more rapidly than the highly cost efficient banks. In sum, the study confirms a strong presence of σ- and β-convergence in cost efficiency levels of Indian public sector banking industry.     

Failed hospital mergers

The spate of hospital mergers in recent years has yielded both substantial increases in market power and many divestitures. These seemingly contradictory results stem from the pressures imposed by stakeholders of merging hospitals and the inability of those stakeholders to exert control over nonprofit institutions prior to the effectuation of a merger. This Article examines several recent mergers, analyses their failures, and recommends that the judiciary and state attorneys general look carefully at merging nonprofits so as to fill the void left by the lack of market control mechanisms.     

《治安管理处罚法》的立法缺憾剖析——兼与相关法律规范之比较

《治安管理处罚法》是一部对我国社会生活有着重大影响的法律。虽然该法在立法理念、立法内容等方面取得了一定的突破,立法成本和调整社会关系的成本也相对降低。但对该法的立法进行深层剖析以及与相关法律规范的比较分析后发现,该法仍在立法理念、规制权力以及与相关法律衔接、协调等方面存在着诸多缺憾,需要进一步改进和完善。     

高等学校管理权的行使与学生受教育权的保护

高校管理者的自主权不是民事权利,而是法律授权和政府下放的准行政权力;学生的受教育权是 受法律保护的权利,剥夺这种权利(如开除)的理由应由法定,非依法不能被剥夺。