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1.
Caspar Rose 《European Journal of Law and Economics》2011,31(3):287-305
This article conducts an analysis of director’s liability in listed firms using modern finance theory. The paper describes
how the use of special general clauses in Danish law regulates director’s liability. It is shown how risk and return combinations
may assist in determining whether management has violated the business judgment rule. The analysis shows that this legal doctrine
is optimal from an economic perspective. The article introduces the concept of “temporal relatively of the shareholder equality
principle” which can be used to determine whether the interests of minority shareholders have been set aside. It is shown
that the principle of shareholder equality must be subjected to both an ex ante, as well as an ex post assessment. Moreover,
courts should be reluctant to interfere in situations where there has been an unequal distribution of gain (or loss) ex post.
The theoretical arguments are illustrated by analyzing a leading Danish court case that involved the squeeze out of minority
shareholders in the Danish telecom company. The paper also analyzes the incentive effects of derivate suits and suits commenced
by individual shareholders. It is shown that the former creates a free rider problem whereas in the latter situation, shareholders
are not fully able to internalize their externalities. 相似文献
2.
破产法:美国的经验与启示 总被引:1,自引:0,他引:1
徐光东 《西南政法大学学报》2008,10(5):51-56
美国破产法经过长期的发展,于1978年确立了现行的制度架构。美国《破产法》关于公司破产的内容,主要体现在第7章和第11章中,也就是其中有关清算程序和重组程序的规定中。分析的结果显示,破产法面临内在的矛盾或冲突,不能同时消除"存伪"和"去真"两种错误,也不能同时实现事前效率和正确的投资与申请破产决策。从破产法的实际操作来看,无论清算还是重组,都会造成一定的价值损失。中国还处在从计划经济向市场经济转轨的过程中,为了解决预算软约束问题,需要严格的破产法。这样的破产法将是债权人导向的或者说对债权人友好的,将更多地运用清算程序。 相似文献
3.
Bankruptcy around the World: Explanations of Its Relative Use 总被引:3,自引:0,他引:3
The law and finance literature highlights the role of investorrights in financial development, firm corporate governance,and financing patterns. For a panel of 35 countries, we investigatehow bankruptcy use relates to countries creditor rightsand judicial efficiency. Bankruptcies are higher in countrieswith more creditor rights, except for a "no automatic stay onassets" provision. Higher judicial efficiency is associatedwith more bankruptcies and appears as a substitute with morecreditor rights. Although only a first step, our findings suggestcreditor rights are complex, balancing prioritization of claims,ex ante risk-taking incentives, and an efficient resolutionof distressed firms. 相似文献
4.
This paper discusses the relationship between law and morality. Morality does not necessarily coincide with the law, but it
contributes to it. An act may be legal but nevertheless considered to be immoral in a particular society. For example, the
use of pornography may be considered by many to be immoral. Nevertheless, the sale and distribution of non-violent, non-child
related, sexually explicit material is legal (or regulated) in many jurisdictions. Many laws are informed by, and even created
by, morality. This paper examines the historical influence of morality on the law and on society in general. It aims to develop
a theoretical framework for examining legal moralism and the social construction of morality and crime as well as the relationship
between sex, desire and taboo. Here, we refer to the moral temporality of sex and taboo, which examines the way in which moral
judgments about sex and what is considered taboo change over time, and the kinds of justifications that are employed in support
of changing moralities. It unpacks the way in which abstract and highly tenuous concepts such as “desire”, “art” and “entertainment”
may be “out of time” with morality, and how morality shapes laws over time, fabricating justifications from within socially
constructed communities of practice. This theoretical framework maps the way in which these concepts have become temporally
dominated by heteronormative structures such as the family, marriage, reproduction, and longevity. It is argued that the logic
of these structures is inexorably tied to the heterosexual life-path, charting individual lives and relationships through
explicit phases of childhood, adolescence and adulthood that, in the twenty-first century, delimit the boundaries of taboo
surrounding sex more than any other time in history. 相似文献
5.
Vincent Chiao 《Criminal Law and Philosophy》2010,4(1):37-55
Anglo-American criminal law traditionally demands a criminal purpose for an attempt conviction, even when the crime attempted
requires only foresight or recklessness. Some legal philosophers have defended this rule by appeal to an alleged difference
in the “moral character” or “intentional structure” of intended versus non-intended harms. I argue that there are reasons
to be skeptical of any such differences; and that even if conceded, it is only on the basis of an unworkable view of criminal
responsibility that such a distinction would support a rule restricting attempts to criminal purpose. I defend instead the
“continuity thesis,” according to which attempts are functionally continuous with endangerment offenses: both are legal efforts
to regulate unreasonably dangerous conduct. The upshot of the continuity thesis is that there is little substantive difference
between attempt and endangerment in principle, no matter how they are labeled in law. 相似文献
6.
Alfredo G. Esposto 《European Journal of Law and Economics》2000,9(2):145-156
In this paper I return to the issue of incentives to justify a narrowing of the applicability of a fair price rule to contracts of necessity. It is argued that such contracts should be viewed as part of a set of ex ante choices, one of which will minimize the costs of dealing with the risks associated with a period of temporary necessity. The Pareto optimality of a contract of necessity depends on whether the contract price would be seen by a potential victim of necessity as optimal ex ante, relative to her other choices with which to deal with the risk. It is shown that in the special case of a discrete choice set a fair price rule of law may not lead to efficient behavior on the part of both agents. 相似文献
7.
Kenneth W. Simons 《Criminal Law and Philosophy》2011,5(2):97-114
Doug Husak suggests that sometimes an actor should be deemed reckless, and not merely negligent, with respect to the risks
that she knowingly created but has forgotten at the moment of action. The validity of this conclusion, he points out, depends
crucially on what it means to be aware of a risk. Husak’s “neutral prompt” and “counterfactual actual belief” criteria are
problematic, however. More persuasive is his suggestion that we understand belief, in this moral and criminal law context,
as a concept whose meaning is determined by its function as a culpability standard. Husak concludes that inadvertent actors
are often less culpable than knowing-but-later-forgetful actors; this is plausible, but there are also numerous counterexamples. 相似文献
8.
Zhiyun Liu 《Frontiers of Law in China》2011,6(3):496-523
From the origin, there has been a strong connection between international relations and international law. In the development
of the history of different academic subjects, the research on international relations and international law are interdependently
promoting each other. As a result, the realization of interdisciplinary research on international legal theory and the study
of international law is inevitable. As a matter of fact, even though the interdisciplinary research of the two subjects has
been separated for almost half a century, the need for the development of the subject and the changing world political and
economical status give them a new chance for reunification. Recently, the interdisciplinary research on international relations
theory and international law by the Western academic is becoming the order of the day, which has become the latest shining
point of the recent development of the two subjects, which is even regarded as the new revolution of international relations
theory and the study of international law. In this context, the past ten years is a period of emergence of Chinese international
relations and the interdisciplinary research of international law. In the past ten years, some scholars have overcome “the
difficulty of interdisciplinary research,” “the prejudice within the subject” and “the gap among different subjects,” and
made pioneering research in the field of “systematic connection” and “issues in overlapping field.” Moreover, they gradually
make the interdisciplinary research to be a popular method and a common recognition. Based on the current studies, interdisciplinary
research will have a broad future in the fields such as “the interchange of concepts,” “the exchange of method,” and “the
mutual assistance of materials,” which will provide scholars in this area with a broad space for research. 相似文献
9.
The Enterprise Bankruptcy Law has designed the regime for debtor’s senior managers to bear civil liabilities, while the framework
design concerning the prosecution mechanism of civil liabilities is still unclear. How to establish a prosecution mechanism
of civil liabilities of debtor’s senior managers in line with the purposes of the bankruptcy regime is a substantial issue
during the implementation of Enterprise Bankruptcy Law. The realization of the civil liabilities regime of debtor’s senior
managers depends on the establishment and operation of a relatively well-developed prosecution mechanism of civil liabilities.
The focus of the prosecution mechanism of civil liabilities is to determine the subject of prosecution of civil liabilities,
the way to realize civil liabilities, and the special hearing proceedings and authorities of the court. Taking steps to clarify
and improve the prosecution mechanism of civil liabilities focusing on the subjects of prosecution (debtor’s senior managers)
and authorities of the court, is the essence and systematic safeguard of realizing the civil liabilities regime of debtor’s
senior managers in the Enterprise Bankruptcy Law.
Gan Peizhong, Ph.D, is a professor of law and director of the Research Center for Enterprise and Company Law at Peking University.
Prof. Gan is a recognized expert on economic law, company law, bankruptcy law and the reform of state-owned enterprises in
China. He has released numerous articles on Chinese law journals and published many books. His major publications include
Encyclopedia of Chinese Economic Law (vice editor-in-chief), New Studies on Economic Law (co-editor), New Studies on Enterprise
Law (author), Studies on Chinese Economic Adjudication (editor-in-chief), Studies on Foreign Economic Law in Beijing (editor-in-chief),
General Theories on Economic Law (co-editor), Legitimate Exercise of the Corporate Control Rights (author). Moreover, he was
named the “leading young and middle-aged jurist” by Beijing Law Society in 1999. In addition, Prof. Gan is the deputy-president
of the Securities Law Association, a member of the Standing Committee of the Economic Law Association under China Law Society.
He also serves as the consultant of the Legislative Affairs Commission of the NPC Standing Committee and Beijing Municipal
People’s Congress, as well as the Haidian District Court of Beijing. 相似文献
10.
In the course of history, the meaning of fa (a Chinese character with an approximate meaning of “law”) has not been invariable,
and its connotation in modern times has been enriched constantly, so as to incorporate many elements of ancient li (ceremony).
If the modern concept of law, already changed and still changing, is to be used to mechanically compare and interpret traditional
Chinese law, misunderstandings might arise. Actually, li and fa are indispensable components of traditional Chinese law, and
the lack of necessary study of the li will prevent us from understanding and explaining the spirit of traditional Chinese
law. In traditional Chinese law, “fa” usually refers to an institutional dimension, especially after Qin and Han dynasties,
whereas li, especially li yi (moral basis for rites and ceremonies), is where the value and spirit of traditional Chinese
law can be found.
Translated from China Social Science, 5th Issue, 2003 in Chinese 相似文献
11.
The convergence of the three nets of telecommunication, television and Internet is a general trend of development. Though
the “convergence of three nets” promotes the competition in the relevant markets, it causes relatively big impacts on the
existing legal order. To meet the challenges brought forth by the “convergence of three nets”, many countries and regions
have successively adopted effective measures for legal transformation, not only integrating laws and regulations on the telecommunication
industry, but also attaching high importance to the transformation of the legal adjustment and control mode where increasingly
more emphasis is laid on the influence and functions of competition law in the “convergence of three nets”. China’s antimonopoly
law shall also play an important role during the process of the “convergence of three nets”. With respect to the definition
of the relevant market and identification of monopoly practices, we shall closely combine the features of the “convergence
of three nets” and pointedly apply the antimonopoly law. 相似文献
12.
Zhuojun Wang 《Frontiers of Law in China》2007,2(3):335-352
With the shifting of the economic pattern and the developing of administrative law, the modern constitutionalism of China
has adopted a progressive development process. Over 20 years, the development of democracy, the rule of law and the human
rights protection clearly illustrate this point. For the gradually developing constitutionalism, the theory of limited rational
is a theoretical basis, the stability of society is a social basis, the changing economic system is a economic basis, and
Confucianism is a cultural basis. Constitutionalism of China should continue to go in such an active, steady and gradual way.
Wang Zhuojun, Professor and Director of Administrative Affairs of Soochow University (till now) and as a visiting scholar
in the Department of Government & Politics, University of Maryland, USA (1996.1–1997.1), whose research focuses on culture,
politics and science of law. So far, his publications are “The Political System in the Perspective of Culture”, “A History
of Epistemology”, “A Study of the External Economy of China’s Universities”, and his translations include “Introduction to
Culture and Anthropology”, “Challenge to Culture from Science and Technology”, etc. Moreover, He has presided several research
projects sponsored by The Ministry of Science and Technology of China and the Education Department of Jiangsu Province, China. 相似文献
13.
The difference between criminals and non-criminals has always been a topic for criminal psychologists. It is easy to describe
the features of offences by their social and legal attributes, while it is still difficult to find any significant difference
of the features from ontological perspective of criminals. To get to know criminals from the point of personality, we may
discover the essential features of criminals. However, while acknowledging the role of personality, the variables such as
situations, moods and social relationships can not be neglected. Meanwhile, it is also necessary to study the personality
mechanism of criminals.
Zhang Shaogang, an associate professor in Communication University of China, also acts as compere in the program of the “Jinri
Shuofa” (legal report) and “Dajia Kanfa” (all get close to the law). Since 2006, he became a Ph.D candidate at China University
of Political Science and Law, majoring in the direction of criminal psychology. His publications include “TV Planning Outline”,
“On the New Planning of TV”, “Television Programs and Program Planning”. The large-scale live broadcasts called “20 Hours
of Life” referring to three cross-strait districts, presided by him, achieved the first prize of China News Awards in the
category of live televisions. 相似文献
14.
Cédric Schneider 《The Journal of Technology Transfer》2011,36(5):565-579
This paper describes and analyzes the occurrence and extent of oppositions initiated against plant biotechnology patents granted
by the European Patent Office (EPO). The opposition mechanism is a legal procedure that allows any third party to challenge
the validity of patents awarded by the EPO. Results indicate that the opposition rate is far greater in plant biotechnology
than in other emerging industries. Consistent with theoretical predictions, the empirical findings suggest that opposed patents
are disproportionately those that score high on features that proxy for their “value” or “quality”. In contrast to previous
findings, however, the results show that large-volume applicants are more likely to be opposed. Because the boundaries of
plant biotech patents are ill-defined, large patent portfolios do not promote cooperative behavior such as licensing or settlements.
The analysis rejects the hypothesis that awardees are subject to “nuisance” or “frivolous” oppositions. Instead, the opposition
procedure serves as an error correction mechanism. 相似文献
15.
贺小勇 《Frontiers of Law in China》2009,4(2):163-177
In April 2007, the United States filed an application with the DSB of WTO with respect to the issue of criminal law protection
mechanism of intellectual property rights in China, which was the first dispute accepted by the DSB arising out of the issue
of criminal law protection mechanism of intellectual property rights. The core of the dispute of the case is how to interpret
the “commercial scale” under Article 61 of the TRIPS Agreement as the “criminal threshold”. It can be seen from the practice
of the interpretation of the DSB that while each WTO member is entitled to interpret the term “commercial scale”, the boundary
of interpretation is subject to Article 61 of the TRIPS Agreement. It is unnecessary for China to lower her “criminal threshold”,
since China’s criminal law protection in intellectual property policy is in compliance with the TRIPS Agreement. In fact,
the United States should change from lowering the criminal threshold to how to strengthen the criminal crackdown on piracy
under the circumstance of lowering the price of genuine works when imposing pressure on China in the protection of intellectual
property rights.
He Xiaoyong, Ph.D, is presently a professor in the Faculty of International Law in the University of East China University
of Political Science and Law. He studied as a visiting scholar at the University of San Francisco (2001). He was awarded a
Chevening Scholarship in 2002 sponsored by British Council and Shanghai Outstanding Teacher Award in 2004. He has released
more than 80 academic articles on WTO issues and international financial law, and his monographs include Legal Aspects on
Supervision under Financial Globalization (2002), International Trade Dispute Settlement and China’s Perspective: Under the
WTO framework (2006) and new issues under the WTO (2008). 相似文献
16.
Kevin J. Murtagh 《Criminal Law and Philosophy》2012,6(1):21-30
In this article, I propose and argue for a conception of inhuman treatment. In the human rights context, I claim, inhuman
treatment is that which is grossly degrading. Relative to “cruel,” “inhumane,” and “degrading,” “inhuman” has received little
attention from moral philosophers. My aim here is to analyze this concept in greater depth in order to determine what it brings
to discussions about punishment and other kinds of treatment. I begin by drawing distinctions between “inhuman,” “inhumane,”
and “degrading.” Then, I discuss analyses of “inhuman treatment” proposed by Jeremy Waldron and John Vorhaus. Although I find
both conceptions problematic, discussing each helps me to set the stage for my proposal. After articulating and arguing for
my own conception, I conclude by briefly explaining some of its implications. 相似文献
17.
Ruiting Qin 《Frontiers of Law in China》2010,5(4):600-625
“The parties can only choose facultative legal norms,” “the parties of all foreign-related civil and commercial cases may
agree to choose Chinese law as the applicable law governing their legal relationship,” and “the applicable law to the contract
chosen by the parties shall not avoid the mandatory provisions of Chinese law” —such viewpoints that have substantial influence
among the theorists and in the judicial practices of Chinese private international law are actually based on misunderstandings
of Chinese private international law. It is a task of the private international law community of China to eliminate such misunderstandings,
hence facilitating the healthy development of Chinese private international law. 相似文献
18.
The corporate social responsibility “beyond law” is the responsibility of enterprises beyond the mandatory obligations by
force of law but in line with social values and expectations. Indeed, the legal norms on such kind of responsibility are “soft
law”, which mainly incorporate social values and expectations in corporate business behaviors and governance structure, so
as to realize corporate “self-regulation”. By protecting the substantive and procedural rights of stakeholders and improving
their negotiation power, the “soft law” aims at realizing the spontaneous confrontation and balance of the market, and the
corporate reputation mechanism and the functions of NGOs adds much to the performance of corporate social responsibility.
He Zhaodan, Economics Doctor of Sun Yat-Sen University, mostly focuses on Law and Economics. She has published six research
articles in the academic journals of China. 相似文献
19.
Genlin Liang 《Frontiers of Law in China》2007,2(3):418-445
The judicial interpretation of criminal law should be an application interpretation to individual cases that is guided by
judges and participated by the prosecutor and the accused, for which the judicial judgment should be combined with the application
of criminal law of specific cases, and the criminal precedents should be as a carrier. The Supreme People’s Court should change
from the previous practices of issuing normative and abstract interpretation to the dual approaches of the interpretation
of criminal law application through direct creation and indirect acknowledgement.
Liang Genlin, Professor and Vice Dean of Law School of Peking University and as a visiting professor of University of Tuebingen
(2001–2002). His main research focuses on criminal law and criminal policy, and his important publications include “On the
Structure of Punishment”, “Liang Genlin’s Review on Criminal Policy, Volume I, Criminal Policy: Standpoint and Category”,
“Liang Genlin’s Review on Criminal Policy, Volume II, the Arm of the Law: Expand and Limit”, “Liang Genlin’s Review on Criminal
Policy, Volume III, Criminal Sanction: Manner and Choice”. Besides, he has also published over 40 discourses on criminal law
and criminal policy since 1996. 相似文献
20.
M. A. Roberts 《Law and Philosophy》2009,28(1):1-57
The issue of wrongful disability arises when parents face the choice whether to produce a child whose life will be unavoidably flawed by a serious disease
or disorder (Down syndrome, for example, or Huntington’s disease) yet clearly worth living. The authors of From Chance to Choice claim, with certain restrictions, that the choice to produce such a child is morally wrong. They then argue that an intuitive
moral approach––a “person-affecting” approach that pins wrongdoing to the harming of some existing or future person––cannot
account for that wrong since the choice to produce such a child cannot, under the logic of the nonidentity problem, harm that
child. The authors propose that we supplement the person-affecting approach with an “impersonal” principle that takes the
form of their well-known principle N. In this paper, I argue that the authors are mistaken to suppose that a plausibly articulated
person-affecting approach cannot account for the wrong of wrongful disability. We can retain an intuitive, comparative, “worse
for” account of harm and still identify serious harms imposed by the choice of wrongful disability. In particular, I argue
that harm, both to the impaired child and to others, comes not in the form of that procreative choice’s procreative effect but rather in the form of its many distributive effects. I also argue that the rare, residual case in which a person-affecting approach would approve of the choice of wrongful
disability does not function as a counterexample to that approach. As a separate matter, I address legal claims for wrongful
disability, which are closely akin to claims for wrongful life. The legal claim is brought by the impaired child, not against the parents, but rather against health care providers whose
negligent failure to diagnose or inform parents of an increased risk of a genetic or congenital impairment results in the
birth of the impaired child. The authors’ treatment of the moral wrong that is done as impersonal in nature suggests that
courts are correct to dismiss any such claim. Once we identify harm, however, the person-affecting approach can identify a
clear foundation in the law for the wrongful disability claim. 相似文献