Should we trust the gatekeepers?: Auditors’ and lawyers’ liability for clients’ misconduct

Many corporate scandals of the past years (Enron, Worldcom) have made apparent the essential role of professional service providers, such as auditors, corporate lawyers, and securities analysts, in detecting and revealing corporate misconduct on the part of their clients [Coffee, J., Jr. (2006). Gatekeepers. The role of the professions in corporate governance. Oxford University Press]. Political and legal responses in the aftermath of those scandals have increased the level of regulatory intervention upon auditors and lawyers. For instance, several measures were introduced in the Sarbanes–Oxley Act of 2002, and were recommended by the European Commission.The imposition of duties of care and reporting on gatekeepers, conditional on their having observed an underlying wrongdoing or misconduct of their clients, is, however, more complicated at a theoretical level than believed by policymakers and commentators. Using framework similar to the one we have recently employed to analyze heterogeneous victims in terms of their costs of care [Ganuza, J., & Gomez, F. (2005). Caution, children crossing! Heterogeneity of victim's cost of care and the negligence rule [article 3], Review of Law and Economics, 1], we model the interaction as one in which the gatekeeper observes the state of the world affecting misconduct with a given probability, and Courts or regulators imposing duties or liabilities are unable to verify whether, in fact, misconduct had or not been observed by the lawyer or auditor. The wrongdoing by the client, however, is ex post costlessly verifiable by the Courts or regulators. Information on wrongdoing is thus verifiable but hideable. In this setting, we show that general (albeit maybe increased) standards of professional behavior by auditors or lawyers may well be sufficient as incentives. If those standards can be adequately set by Courts or regulators, in anticipation of the opportunities for strategic behavior derived from the imperfect observation and the unverifiability of actual observation, legal rules do not need to rely on more complex policies of trust or distrust towards the statements, or on the proofs, provided by the gatekeepers, concerning the actual observation of clients’ misbehavior. The implications of the model tend to imply that the distinction between voluntary violation (scienter) of duties, and mere negligence, contrary to existing Law, is not very useful in this context.     

反思“上帝的审判”——评巴特莱特的《中世纪神判》

从古代至近代,神判为世界上许多不同地区的民族所使用,主要是在穷尽其他证明方法无法证明案件事实、法官对事实存在与否不能达到确信状态时,作为最后的救济。巴特莱特的《中世纪神判》一书是迄今有关神判的第一部系统的专著,该书描述了神判在欧洲自最早出现于蛮族法典时、经基督教社会、至近代欧美国家捉巫时期一千多年的历史。作者对中世纪欧洲的神判洞察深刻,分析到位,对于神判的起源、传播、运作、功能、规则、类型、终结以及替代性制度进行了有说服力的论述,尤其讨论了13世纪前后神判的终结及其原因,批判了史学界有关神判运作及衰落的理论,提出了新的见解。但该书也存在一些不足,本文从三方面作了批评。     

早产和胎盘早剥的损伤程度鉴定（附1例分析）

本文从1例孕妇的损伤程度鉴定着手,对《人体重伤鉴定标准》的第78奈、第45条、第92务等条款的应用进行研究,结合案情对现行标准应用误区进行分析,提出症结所在,为了保证鉴定结论的质量,对《人体重伤鉴定标准》进行完善和修改势在必行。     

Changes to the training of English and Welsh lawyers: implications for the future of university law schools

The focus of this article is upon the plans by the Bar Standards Board and, in particular, the Solicitors Regulation Authority to remodel the education and training processes for barristers and solicitors. Introducing the most radical changes to legal education in recent decades, the proposals present Anglo-Welsh law schools with dilemmas in terms of their future educational models, student recruitment and issues of equal opportunities and accessibility. However, opportunities are also present, should some law schools wish to utilise the momentum for change to move away from constraints necessitated by following an, in part, professionally determined syllabus. Research Excellence Framework, professorial expertise and doctoral degree data are used to demonstrate that some law schools have moved away from focusing on areas most relevant to professional practice, but have retained a dependence on qualifying law degree status to recruit students in comparatively large numbers.     

对《刑法修正案(七)》(草案)三个条文的修改建议

在已公布的<刑法修正案(七>(草案)中,应取消现在的修正案(七)草案第二条第2款的内容,将第二条第2款在刑法第185条之一第2款的基础上进行修改.对(草案)第四条,继续沿用现在的方式以非法经营罪论处,用两高解释予以帮助.或者在<草案>第四条中增加列举传销形式.对第6条,将该条条文从刑法第253条之一变为第280条之一,列举式增加主体,增加单位犯罪和行为祥态,进一步明确保护对象,并明确本罪可以由过失构成.