寻租理论与我国的律师收费制度改革

寻租理论对于律师收费改革中的某些消极现象有着较强的解释能力。律师服务收费办法的制定与政府指导价标准的设立是政府对市场调节的一种行政干预,不可避免地导致寻租机会和寻租活动。正确界定政府在法律服务市场中的角色和作用,使其在充分发挥积极作用的同时有效地避免寻租现象的产生,已成为律师收费制度改革的当务之急。     

国外电信法律体制的改革及其对中国的启示

电信业传统上被认为是具有自然垄断性质的行业。为了既避免竞争破坏资源优化配置又保护消费者的利益,许多国家要么对提供服务的私有垄断者进行价格管制,要么对垄断服务企业实行国有化。垄断经营者的低效益和电信技术发展的突飞猛进使得对电信业改革的政治呼声不断提高。在我国电信业改革不断深入的今天,学习外国在互联互通、拨打平等性与号码可带性和频谱分配方面的电信管制改革的政策和实践具有重大的意义。     

OTT regulation framework in the context of CJEU Skype case and European Electronic Communications Code

The telecommunications services sector is one of the most dynamically developing segments of the contemporary economy. At the same time, it is undergoing constant change, the result of its adaptation to the needs of modern digital services and the expectations of users. In practice, traditional telecommunications services are being increasingly replaced by those that offer equivalent functionality but are provided via the Internet. Examples of this type of service are VoIP telephony, instant messengers and online chat. This group of services is collectively referred to as OTT.The growing popularity of OTT services not only affects the shape of the telecommunications market, but, from the point of view of legislatures and market regulators, has also led to a number of practical problems. One of them is how to apply a EU regulatory framework established for the electronic communications sector to modern OTT services. Recently, this problem has become an object of interest to both the CJEU and the EU legislature.The purpose of this article is to discuss the effects of the recent Skype adjudication on the regulation of the OTT sector, including the pending entry into force of the European Electronic Communications Code. The analysis considers the technical and regulatory background of issues relating to the judgment, the ongoing legislative work and the importance of the judgment in practice. Ambiguities in interpretation are also identified and discussed, in particular those relating to the attempt to apply the Skype judgment and the entire regulatory framework to OTT services.These aspects will be discussed from the perspective of the protection of users' privacy, an important part of the provision of electronic communications services. The choice of this aspect of OTT services regulation would seem to be particularly apt in light of the ongoing reform of the EU data protection model, which will include the new e-privacy regulation currently being drafted.     

First amendment values and government participation in the marketplace,fifty years after the Hutchins report

The Hutchins Commission took a favorable view of government speech; Its report recommended that government act as a supplementary news source for the public. This article asserts that the commission was “fighting the last war” by focusing on government restraints on the press, while failing to propose limitations on the government's ability to circumvent the press. With the advent of new forms of telecommunications technology, the government might one day replace the private sector press as the public's primary source for news. This article asserts that the Supreme Court should recognize that the Press Clause of the First Amendment guarantees the existence of the private sector press as an independent, nongovernmental branch of our governance system. Based on a “separation of powers” view of Press Clause values, the article argues that the Court should create a First Amendment “right of reply” to any government dissemination of information to the American public in a manner that circumvents the traditional role of the private sector press.     

一般竞争管制与行业竞争管制在电信管制中的冲突与协调--加拿大电信管制的经验及对我国的启示

本文分析了电信业在破除垄断、引入竞争后,电信管制中,一般竞争管制与电信行业管制之间对电信经营活动管辖权存在的冲突与协调这一现象.通过介绍加拿大富有特色的做法及解决模式,结合我国现阶段的实际,以推进我国电信业发展,建立完善的电信竞争政策执行机制为目标,提出我国解决这一问题可采取的对策.     

Hospital policy in The Netherlands: the parameters of structural stalemate

The Dutch hospital sector has recently been the subject of two divergent national policy initiatives. Following a mixed experience with regulation in the mid-1980s, the national government has now taken the first steps in a radical shift toward market-based competition. This article suggests that neither official strategy can address the fundamental structural and cultural factors that shape institutional behavior in the Dutch hospital system. Drawing upon empirical evidence from two 1987 hospital case studies, this article contends that Dutch hospital management reflects a precentralized insularity which, in turn, sharply reduces the likelihood that either publicly or privately framed decentralized strategies can be successfully implemented.     

Why are the United States and the European Union failing to regulate the internet efficiently? Going beyond the bottom-up and top-down alternatives

This paper analyzes the different approaches for Internet regulation. We use the United States and European Union to illustrate the alternative approaches of self-regulation and government intervention. Our research suggests that both systems have serious shortcomings that could be ameliorated by the use of a mixed system for Internet regulation in which both the private and public sector have a role. The case study of privacy rights self regulation in the United States and its failure to effectively provide privacy regulation serves as our empirical evidence. We provide guidelines for both the government and the private sector in defining and enforcing privacy regulation. JEL Classification K33 · K2 · L51 · L86 · O57     

Recasting Competition Concurrency under the Enterprise and Regulatory Reform Act 2013

The concurrent enforcement power granted to certain sector economic regulators is one of the more remarkable features of UK competition law. In practice, regulators have tended to under‐enforce their competition powers, preferring to resolve market difficulties through regulatory interventions. Recent amendments to the concurrency framework, introduced by sections 51 to 53 of the Enterprise and Regulatory Reform Act 2013, seek both to strengthen the priority of competition enforcement and to provide plausible sanctions – including, ultimately, the removal of competition jurisdiction from regulators – for continued underuse. This article assesses these reforms in light of the history and (limited) application of the concurrent competition powers of regulators to date. It argues that the absence of an overarching policy rationale for this curious example of UK antitrust ‘exceptionalism’ complicates the determination of whether the reforms, which ostensibly seek to reinforce but potentially also undermine concurrency, are likely to have a positive market impact in practice.     

浅淡我国电信产业发展中的政府规制改革——由“小灵通”现象引发的思考

“小灵通”是在电信竞争和管制规则没有有效发挥作用的情况下出现和发展的,其运营过程伴随着不公平竞争。这种电信领域不公平竞争现象,反映了目前我国电信政府管制中存在的问题。因此,必须完善政府规制具体措施,加快电信管制立法,以促使电信产业中公平竞争秩序的形成和有效竞争局面的展开。     

从“高考查分收费”看我国教育领域寻租行为

教育作为国家一项公共事业,其准公共产品的性质以及政府的广泛干预,使得教育领域中的租金无处不在,这必然诱使各利益主体参与到对各种教育租金的追逐活动中,因此教育寻租行为是大量存在的。本文旨在通过对“高考查分收费”这一案例的分析,认识教育寻租活动的表现和实质,重点剖析其危害,为有效地制止与预防教育寻租活动提供参考意见。     

职务犯罪原因论及其启示

关于职务犯罪原因,国外思想家提出了权力作恶与分权制衡学说、自由主义理论、寻租理论、性恶论等不同主张,而国内学者却提出了经济根源说、体制根源说、思想根源说等不同观点。通过比较可以发现,西方学者有关职务犯罪预防理论在深刻性上是值得我们借鉴的,而我国学者在论述这一理论时的系统性更加突出。因此,如果将两者的长处加以吸收也许可以探寻出一条有效预防职务犯罪的道路。其实,职务犯罪行为的发生,既有行为人个人方面的原因,也有社会制度和体制方面的原因。要预防职务犯罪,除了加强公务员思想道德教育,使其不想犯罪外,更重要的是加强公共政策研究和制度建设,转变政府职能,合理规制政府行为,以减少公务员心理失衡的诱惑源和可能犯罪的机会,使其不能和不敢犯罪。     

Governmental liability for breach of contract

Government contracts are subject to a number of legal rulesthat have no private sector analogues and that have receivedvirtually no attention from law and economics scholar. Thisarticle explores these rules from an economic perspective, withspecial attention to the leading modern case on the subject,United States v. Winstar. The analysis emphasizes a number ofdifferences between governmental and private actors that haveimportant implications for the wisdom of applying conventionalbreach of contract remedies to the government. These differencesafford plausible efficiency justifications, in our view, formany of the most important doctrines governing government contracts.Some of these doctrines help to impede the use of long-termcontracts to insulate inefficient rent-seeking arrangementsagainst subsequent attack, some seem to prevent the governmentfrom inefficiently contracting away its ability to respond tonew information, and others seem to work a sensible allocationbetween the government and private contractors of the risk thatgovernment may change its policies. Not all doctrines and decisionscan be justified in this fashion, however, and we do not meanto claim that the existing body of law is in any sense optimal.Indeed, the Winstar decision itself seems quite mistaken froman economic standpoint. The considerations that we develop haveimplications for a number of related legal issues. Not all ofthese implications are developed here, but we do consider modernlitigation under the Contract Clause of the U.S. Constitutionas well as the recent academic debate about the wisdom of retroactivetaxation.     

优化第三部门与政府关系 促进第三部门发展——以“资源依赖”理论为视角

＂资源依赖＂理论是考察第三部门与政府资源互依关系的有效理论工具。运用这一理论分析我国第三部门与政府的关系可以发现,我国政府对第三部门的态度仍然是＂防范控制＂优先于＂扶持发展＂,而后者的应对策略则是＂自我节制＂、＂非制度化生存＂与＂自我异化＂,这在很大程度上影响了第三部门的发展,因此,急需优化两者之间的关系。优化的途径主要包括：转变对第三部门发展的观念、加强第三部门与政府的合作、优化第三部门的制度环境等。     

THE DIFFERENT ROLE OF MANDATORY ACCESS IN GERMAN REGULATION OF RAILROADS AND TELECOMMUNICATIONS

Network services can be provided efficiently in competitivemarkets, if non-discriminatory access to the complementary infrastructurecapacities is guaranteed. The sector-symmetric application ofthe disaggregated regulatory approach to railways and telecommunicationsreveals the different role of mandatory access. Whereas in telecommunicationsonly the local loop may create a remaining regulatory problem,mandatory access has to be guaranteed with respect to the railwayinfrastructure as a whole. In spite of the large phasing-outpotentials of sector-specific regulation in telecommunications,this sector is still under the burden of over-regulation. Incontrast, in the railway sector mandatory access has been introducedonly recently.     

论竞争法主管机关与产业监管机关的管辖权划分

竞争法主管机关与产业监管机关对受管制产业竞争行为的管辖权划分,需要考察三重维度:以政府管制与竞争政策的差异性为横向维度;以管制革新与过渡性产业的竞争政策实施为纵向维度;以产业管制密度及其对竞争政策的贯彻为个别考察维度。我国的制度构建应充分考虑上述三重维度,合理划分、协调反垄断法主管机关与产业监管机关的管辖权。     

Optimal Law Enforcement with a Rent-Seeking Government

This article analyzes public and private law enforcement whenthe government is motivated by rent seeking. A rent-seekinggovernment seeks primarily to maximize revenue. The articleconcludes as follows: (1) if offenders have sufficient wealth,a rent-seeking government is more aggressive than a social-welfare-maximizinggovernment in enforcing laws against minor crimes (such as parkingviolations) but more lax in enforcing laws against major crimes;(2) competitive private enforcement is usually better and neverworse than monopolistic private enforcement; (3) The choicebetween competitive private enforcement and public enforcementdepends on which is cheaper and on the severity of the offense.     

'New Governance' in European Corporate Law Regulation as Transnational Legal Pluralism

The present transformation of European corporate governance regulation mirrors the challenges that have been facing the EU's continuously evolving polity, marked by tensions between centralised integration programmes, on the one hand, and Member State's embedded capitalisms, path-dependencies and rent-seeking, on the other. As longstanding concerns with remaining obstacles to more mobility for workers, services, business entities and capital in recent years are aligned with post-Lisbon commitments to creating the world's leading competitive market, European corporate governance regulation (ECGR) has become exposed to and implicated in a set of highly dynamic regulatory experiments. In this context, 'New Governance' offers itself as both a tentative label and immodest proposal for a more responsive and innovative approach to European law making. The following article assesses the recently emerging regulatory forms in ECGR as illustrations of far-reaching transformations in market governance. The arguable parallels between the EU's regulatory transformation in response to growing legitimacy concerns and the recurring question about whose interests a business corporation is intended to serve, provide the framework for an exploration of current regulatory trajectories in European corporate law that can most adequately be understood as a telling example of transnational legal pluralism.     

The challenges of fighting sex trafficking in the legalized prostitution market of the Netherlands

In 2000, the Dutch authorities lifted the ban on brothels in the Netherlands. The essence of their approach was to regulate prostitution. People of legal age could now voluntarily sell and purchase sexual services. Brothels which complied with certain licensing conditions were legalized. This paper critically assesses the logic of a position that argues that human trafficking is reduced when actors in the legalized prostitution sector are made responsible for what happens on their premises (using licensing conditions). This idea is confronted with empirical evidence about the Netherlands in general and the city of Amsterdam in particular. Furthermore, the paper addresses two questions. What are consequences of the regularization of prostitution for the criminal investigation and prosecution of sex trafficking? How do criminal justice agencies collaborate with regulatory authorities in the regulated and non-regulated sectors of the prostitution market? The main conclusion is that the screening of brothel owners and the monitoring of the compliance of licensing conditions do not create levels of transparency that enable sex trafficking to be exposed. The prostitution business retains many characteristics of an illegitimate market and the legalization and regulation of the prostitution sector has not driven out organized crime. On the contrary, fighting sex trafficking using the criminal justice system may even be harder in the legalized prostitution sector.     

The WTO's First Antitrust Case - Mexican Telecom: A Sleeping Victory for Trade and Competition

A World Trade Organization (WTO) dispute panel has decided theWTO’s first antitrust case. It resolved the matter infavour of the United States’ claim that Mexico had anticompetitivelyfacilitated exploitative prices and a cartel that raised theprice of terminating cross-border telephone calls in Mexicoand thereby harmed trade and competition. The case is Mexico– Measures Affecting Telecommunications Services (April2004) (‘the Mexican telecom case’). This essay arguesthat if the WTO’s antitrust clause was in fact triggered(which is a point of contention), Mexico’s conduct violatedits obligations. Furthermore, it argues that the GATS antitrustobligation in the telecommunications sector should be acknowledgedas occupying an important place at the intersection of trade,competition and industrial policies. Antitrust law is the otherside of the coin of liberal trade law. Antitrust law opens marketsby prohibiting private and other commercial restraints, whiletrade law opens markets by prohibiting public restraints. BeforeMexican telecom, no legal discipline was regarded as copiousor flexible enough to address combined public and private restraints.In particular, nations were allowed free rein to privilege nationalchampions that harmed competition in and out of their country,imposing costs on outsiders as well as on their own people.A positive reading of the antitrust clause helps to fill thegap.     

Antitrust and hospital mergers: does the nonprofit form affect competitive substance?

Following a string of government losses in cases challenging hospital mergers in federal court, the Federal Trade Commission and the Department of Justice issued their report on competition in health care seeking to set the record straight on a number of issues that underlie the judiciary's resolution of these cases. One such issue is the import of nonprofit status for applying antitrust law. This essay describes antitrust's role in addressing the consolidation in the hospital sector and the subtle influence that the social function of the nonprofit hospital has had in merger litigation. Noting that the political and social context in which these institutions operate is never far from the surface, it takes issue with the proposal to cabin merger doctrine so as to deny the significance of nonprofit status in merger analysis. Given the dynamic change in the regulatory climate and heterogeneity of local health care markets, it advises courts not to accept the FTC's preemptive standard regarding the significance of hospitals' nonprofit status and keep open the possibility of fashioning new presumptive rules tailored to more complete economic accounts of nonprofit firm behavior.