上市公司自愿性信息披露的法律规制

上市公司自愿性信息披露是强制性信息披露的有效补充，上市公司基于寻求信息租金的逐利性考虑，存在进行自愿性信息披露的动机。由于立法不够健全和上市公司自身存在的问题，我国上市公司自愿性信息披露还存在着较多不规范性问题，因此，从立法、执法、司法等角度对上市公司自愿性信息披露进行鼓励、保护和监管是有效引导上市公司自愿性信息披露有效运作的制度条件。     

美国上市公司信息披露失真综合治理及其启示

面对近年来大批知名上市公司财务欺诈事件频发,美国对此作出了积极的应对之策.其治理思路可以归结为"一个中心,两个基本点",即以政府(国会)作为治理的中心力量并立足于重塑诚信的社会环境和加强相关法规改革两个基本面.在此治理思路指导下,美国政府加强了诚信的微观环境和宏观环境的培养,并加大了上市公司相关法规的改革力度,包括:锁定CEO/CFO个人责任,将审计委员会明确为法定的公司财务监督机构,对会计师事务所等中介机构实施严格监管,提出更高的信息披露要求,作出更多的救济和更重的惩罚规定,等等.这些综合治理措施在较短时间内就已取得了较为理想的效果,因而值得我们借鉴.     

美国对有意义的警示性语言的规制

预测性信息披露人在披露预测性信息时，必须伴随有意义的警示语言，否则就有可能被视为欺诈，有意义的警示性语言是美国预测性声明的免责要件之一。美国判例法为有意义的警示性语言创设了具体的评判标准，它要求：警示语言必须具有针对性，语言在形式上是清晰的、显而易见的，警示性语言必须是与重要的风险因素相联系的，必须及时更新。美国对有意义的警示性语言的规制对我国预测性信息披露制度的构建具有参考价值，对在美国上市的中国公司的信息披露事务具有一定的指导意义。     

Regulatory Disclosure of Offending Companies in the Dutch Financial Market: Consumer Protection or Enforcement Publicity?

Regulatory disclosure of names of offending companies is increasingly popular as an alternative to traditional command and control regulation. The goals and intended effects of disclosure are not always clear, however. Do regulators wish to increase their transparency, or do they intend to name and shame? This article aims to contribute to a better understanding of the underlying working mechanism of regulatory disclosure of offenders' names through a case study of the Dutch Authority for Financial Markets' disclosure policy. It distinguishes two types of disclosure strategies: consumer oriented and firm oriented. The case study shows that although informing consumers was the primary purpose of disclosure as intended by the Dutch legislature, the purpose in practice has shifted to informing companies about the regulators' enforcement policy. The nature of the disclosed information makes it unlikely that disclosure adequately prevents financial risk taking by consumers. Instead of empowering consumers, disclosure has been incorporated in a traditional deterrence logic, turning out not to be an example of new governance but instead a modern version of command and control enforcement publicity.     

Disclosing Conflicts of Interest in Clinical Research: Views of Institutional Review Boards, Conflict of Interest Committees, and Investigators

Strategies for disclosing investigators' financial interests to potential research participants have been adopted by many research institutions. However, little is known about how decisions are made regarding disclosures of financial interests to potential research participants, including what is disclosed and the rationale for making these determinations. We sought to understand the attitudes, beliefs, and practices of institutional review board chairs, conflict of interest committee chairs, and investigators regarding disclosure of financial interests to potential research participants. Several themes emerged, including general attitudes toward conflicts of interest, circumstances in which financial interests should be disclosed, rationales and benefits of disclosure, what should be disclosed, negative effects of and barriers to disclosure, and timing and presentation of disclosure. Respondents cited several rationales for disclosure, including enabling informed decision making, promoting trust in researchers and research institutions, and reducing legal liability. There was general agreement that disclosure should happen early in the consent process. Respondents disagreed about whether to disclose the amounts of particular financial interests. Clarifying the goals of disclosure and understanding how potential research participants use the information will be critical in efforts to ensure the integrity of clinical research and to protect the rights and interests of participants.     

公司社会责任信息披露的软法构建研究

2018年,证监会修订《上市公司治理准则》,确立了环境、社会、治理的ESG信息披露框架。在混合所有制改革、金融开放加速的背景下,中小投资者权益保护的内涵发生根本转变,企业社会责任利益相关方的话语权得到提升。优化营商环境,推进信用监管将市场自由的效率目标与公平竞争的秩序目标进一步推向融合。企业信息公开、上市公司信息披露、社会信用体系建设完善了社会责任信息交换的公共场域;ESG投资的交易成本降低,市场的强劲表现成为推进上市公司责任治理的实质性激励机制。以上元素共同构成了《上市公司治理准则》修订纳入ESG信息披露框架的制度语境。这一修订客观上打造了一个撬动责任软法推进的支点,通过将ESG框架导入上市公司治理,与新发展理念结合,在多元参与的公司治理结构和基于合规性的履责实践基础上,使得创新商业方法解决社会问题内化为上市公司的决策思维和责任基因,追求利润至上的"经济人"理性与追求影响力投资的"负责任"价值取向在ESG投资实践中有效融合。     

上市公司信息披露对个体投资者行为的影响——基于行为金融的实验研究

在假设我国股票市场中的个体投资者存在非理性的前提下,运用实验研究方法,考察上市公司信息披露对个体投资者投资行为的影响程度。从中发现:个体投资者存在着过度自信的心理,对上市公司信息披露的关注和敏感度不高;从上市公司财务和非财务信息披露的影响来看,个体投资者受前者的影响更显著一些,但不存在过度反应,而对后者则反应不足。这表明应进一步完善我国上市公司的信息披露制度,以尽快得到广大个体投资者的认可。     

行为金融信息中介的网贷平台信息披露规则

从金融属性上看,网贷平台提供的是借贷信息中介服务。信息披露是其主营业务内容,平台不能参与借贷交易,否则将使流动性等风险大量集中到平台并引发严重后果。从法律性质来看,网贷平台则是借贷居间商,应当向交易双方履行相应的信息披露义务。网贷业务兼具金融和网络化特点,我国《合同法》第425条的一般性规定无法有效规制网贷平台的信息披露行为。P2P网络借贷信息披露监管规范虽初具体系,但还需围绕投资者等金融消费者保护这一根本宗旨进行改进,使信息披露内容以普通消费者等客户认知水平和需求为导向,信息披露义务的履行贯穿借贷合同存续的全过程,平台违反信息披露义务应当承担相应的民事责任等。     

论企业破产重整信息披露时间节点的规范与细化

企业破产重整中债权人与债务人利益的平衡依赖于破产法上的正当程序,知情权的实现是保障债权人等利害关系人利益的基本前提。本文通过对26家上市公司重整程序中的信息披露情况进行实证分析并结合制度比较后发现,目前我国企业破产法上关于重整程序中信息披露的时间没有明确的规定,在实践和立法上均存在不足。建议结合我国实际情况按照破产重整程序推进的逻辑完善我国破产法上信息披露制度,规范信息披露的时间节点,在重整程序启动前、重整计划草案表决前和重整计划执行三个阶段对信息披露的时间节点与内容进行规范与细化。     

The right not to know and coronary angiography: is the common law of Australia consistent with patients' wishes?

In "The Right Not to Know: Patient Autonomy or Medical Paternalism?" (2000) 7 JLM 286 Judy Gutman qualitatively examined the direction of the law relating to the duty of medical practitioners to disclose information to their patients about risks associated with medical treatment. Prompted by theoretical issues raised in that article, a quantitative study was performed. The study focused on the wishes of patients referred for coronary angiography regarding information about the risks inherent in that procedure. The results of the study contribute to the ongoing academic discussion about risk disclosure and consent to medical treatment and demonstrate a need for further empirical research in the area. The study also highlights the desirability of clinical medical practice conforming to the tenets of the common law and vice versa.     

The Quality of Information Provided by Dual-Class Firms

When Google went public with a dual-class capital structure in which shares owned by the founders confer greater voting rights than shares issued to public investors, its cofounders, Larry Page and Sergey Brin, promised to provide investors with high-quality information about the company. Using the words of Warren Buffett, the chairman and CEO of Berkshire Hathaway, another dual-class firm, they promised shareholders, “We won’t ‘smooth’ quarterly or annual results: If earnings figures are lumpy when they reach headquarters, they will be lumpy when they reach you.” Page, Brin, and Buffett definitely understood the importance of quality information to their investors, especially in dual-class structures. But do dual-class companies really provide investors with credible financial information? Contrary to the assumption of agency theory that dual-class firms are less transparent, we find empirically that these companies do provide credible information to their investors. Our results suggest that the quality of financial reports, as measured by their ability to predict change in future earnings, is higher for dual-class companies than for their single-class counterparts. These findings may be explained by the unique relations created in dual-class firms in which the founders provide investors with higher-quality information in exchange for superior voting rights. The article contributes to the heated debate about the transparency of dual-class companies by providing policy makers with important insights on the quality of information provided by these companies. Our findings suggest that there is no need for stricter regulation with regard to disclosure of financial information by dual-class firms.     

To Disclose or not to Disclose? That is the Question in Collaborative Law

Collaborative Law (CL) is a dispute resolution process increasingly used in family law and divorce designed to encourage problem solving negotiations by parties represented by counsel. Many states have adapted legislation to authorize and facilitate CL and thousands of lawyers have been trained in the CL process. CL lawyers and participants sign a Participation Agreement in which they agree that the lawyers will be disqualified if the CL process terminates without settlement. They also promise full and voluntary disclosure of information. The extent of the obligation of disclosure is, however, unclear. Through analysis of an extended hypothetical divorce settlement negotiation, this article advocates that CL lawyers and clients should assume an obligation to disclose material facts without a request from the other side. Traditional legal ethics, based on an adversarial framework, requires only disclosure of information when requested by another party. In addition, in traditional legal ethics, a lawyer cannot disclose information obtained in the course of the lawyer‐client relationship without the client's consent even if material to the negotiation. Some authority regulating CL, however, suggests that CL participants and counsel should disclose material information without a specific request even if a client does not want the information disclosed. In that situation, the CL lawyer should encourage the client to disclose the information but if the client refuses to do so, withdraw from the representation. This Article reviews the arguments for and against an obligation of affirmative disclosure in CL. It suggests that affirmative disclosure obligations should be the subject of discussion between CL participants and lawyers and that CL Participation Agreements should be drafted to establish a clear obligation. Finally, this article identifies key areas for further discussion and research on CL disclosure obligations.     

上市公司定期报告信息披露违法董事责任认定研究

中国证监会对上市公司信息披露违法案件中董事责任的追究,是遏制信息披露违法、促使上市公司规范运作的重要手段。中国证监会对上市公司定期报告披露违法的行政处罚案例的分析和整理表明:中国证监会在对董事行政责任中责任主体的认定、归责原则的确立、具体行为标准的产生和应用等方面,补充和完善了现有法律规定的不足,丰富了我国信息披露制度和上市公司治理规则。     

金融危机下企业经济性裁员的法律思考

在金融危机影响下,企业常常以经济性裁员来减少企业的人力成本支出,这是企业经营自主权的体现。但这种经济性裁员涉及人数多,稍有不慎就会产生严重的法律后果和社会影响。所以,在劳动合同法规范下,经济性裁员必须符合法定条件,履行法定程序。本文从法律适用的角度出发,在论述金融危机下企业经济性裁员的法律后果与影响的基础上,对我国现行经济性裁员的法律规定及存在的问题进行了具体分析,并对金融危机下完善我国企业经济性裁员制度提出了若干建议。     

Case illustrations of negative sexual experiences among university women in Japan: victimization disclosure and reactions of the confidant

A retrospective study of negative sexual experiences (NSEs) was conducted among 532 Japanese university women. More than one third of the respondents reported having experienced at least one NSE, and two thirds were victimized by strangers. When the woman knew the perpetrator well, the NSE was more likely to be repeated. One sixth of victims did not disclose the incident. Older children disclosed incidents more frequently than did younger children. Women in the total disclosure group disclosed the incidents more quickly than did those in the partial disclosure group. Women victimized by strangers were more likely to disclose the incident completely. Less than 10% of women were disappointed with the reaction of the first-disclosure receiver. Unlike results obtained in previous studies, the victims did not necessarily regard it negatively when the incident was viewed less seriously or they were criticized by first-disclosure receivers. On the other hand, instrumental support was not always supportive.     

Victims of Intimate Partner Violence. The Physician’s Intervention in the Portuguese National Health Service

This study intends to characterize the current situation in Portugal regarding intimate partner violence (IPV) disclosure by the victims and its detection and report by the National Health Service (NHS) professionals, in order to promote the health and protection of the former. We interviewed 101 adult victims of IPV who sought care in the NHS. The results reveal that a relevant number of victims did not disclose the abuse to NHS physicians (18.8 %). According to the victims, in 57.9 % of the cases, physicians did not suspect IPV. In cases where there actually was suspicion (based on specific evidence and markers) or where there was no concealment of such type of violence, 52.3 % of the physicians did not inform the victims about the risks this situation posed to them, 89.8 % did not mention their obligation to denounce the case (as it is foreseen by the Portuguese law), and the number of injuries they described was lower than the one described in the forensic medical reports.     

State Aid and Taxation of Transnational Companies: A Study of State-Corporate Crime

This study examines the taxation of transnational companies from the perspective of state-corporate crime. As in Sutherland’s pioneering study on white-collar crime, the author relies, in this case, on administrative decisions issued by the European Commissioner for Competition regarding Fiat and Starbucks. According to the Commissioner, the tax advisors of these organizations prepared and submitted special tax rulings on behalf of their clients that were granted by the Luxembourg and Dutch tax authorities, respectively. However, these tax rulings were considered illegal under European law, as they constitute state aid. Therefore, the Commissioner fined Fiat and Starbucks. In this inquiry, state aid from tax rulings is conceived as a process of capital accumulation that arises from states’ regimes of permission based on the interactions between public sector and private sector actors. Thus, an observable symbiosis between tax authorities and transnational companies allowed the latter to use tax regulations in a manipulative way, while the former exercised weak/undue control. This study also unveiled the criminogenic role of tax advisors, an industry that is rarely held accountable for their actions.     

我国政府过程性信息公开的困局与纾解

在我国。政府过程性信息是否公开随着个案的陆续出现引发了较大的争议,相关立法、行政机关、司法机关对此存在着不同的判断。在城外一些国家信息公开的立法与实践中,均对过程性信息的公开有着充分的考虑和细致的制度规定,值得我国借鉴。为平衡公众知情权与行政机关的行政权。我国信息公开立法应将政府过程性信息列入免于公开的范围,但须制定公共利益的特别裁量标准,如公共政策的制定等影响面较大的政府行为,应最大程度地将政府过程性信息公开。     

The Stock Market to the Rescue? Carbon Disclosure and the Future of Securities-Related Climate Change Litigation

This article considers the role that securities litigation can play in forcing public companies to disclose climate change risks to their investors and potential shareholders. Such disclosure can prove to be a strong incentive for companies to manage their greenhouse gas emissions and climate change exposure better. Securities regulators in North America have, for the most part, resisted efforts effectively to enforce obligations by companies to disclose climate change risks. This led to a recent action by the Office of the Attorney-General in New York, which exemplifies the role that litigation can play in this area. Investors themselves may soon bring their own actions against companies over their carbon disclosure, the basis for which is already provided in securities legislation.     

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。