公司破产边缘董事不当激励的法律规制

董事作出商业决策时的激励结构与公司的经营和财务状况具有直接的相关性。当公司具有持续营业能力时,董事的风险偏好是中性的。可是,当公司处于破产边缘时,董事则具有以债权人的利益为代价实施高风险、高收益商业决策的不当激励。许多国家公司法或破产法都提出了相应的法律策略,以约束董事的这种不当激励并保护债权人的利益。我国破产法应要求债务人承担一般性的破产申请义务,在此基础上,进一步规定董事承担在一定期限内提出破产申请的义务,否则就要对债权人因迟延申请破产所受的损失承担赔偿责任。     

Implementing health care reform in Israel: organizational response to perceived incentives

Devising new incentives was a main element of health care reform in Israel, which created a regulated market that embodies many principles of managed competition. This study examined sick fund directors' perceptions of the new incentives and their strategic responses to these incentives, enabling the testing of how managed competition works in practice. The methodology used was a multiple case study of Israel's four sick funds. Data were gathered through in-depth interviews with 160 senior officials, analysis of national health insurance legislation, and analysis of published and unpublished archival documents, newspaper articles, public statements of senior managers, and other published data on the sick funds' behavior. The study revealed discrepancies between planned and perceived incentives and highlighted the effect of the latter on strategy formulation. Analysis of sick fund strategies showed that their responses to managed competition incentives deviated from theoretical expectations, compromising some of the objectives of the reform. The study also shows that contextual features account for the specific model of managed competition that was implemented and for the specific strategies employed by the sick funds. The study concludes by highlighting the need to build a process that will enable policy makers to consider local contextual factors when planning and implementing reform, involving health care providers in designing incentives, continuously monitoring processes and outcomes in the reformed system, and allowing for flexibility in policy making.     

Three Problems for Luigi Ferrajoli

The author discusses three topics, viz., the definition of asubjective right, the universality of fundamental rights, andthe non-disposability of such rights.As to the first topic, the author argues that, if a subjectiveright is defined as a claim to which a duty corresponds, thenone cannot maintain that, nevertheless, a right can exist withoutthe corresponding duty (the absense of such a duty being a gap in thelegal system). If no duty is stated by positive law, there is nogap – quite simply, the conclusion must be that there is noright as well.As to the second, the author raises a number of logical doubtsconcerning the very possibility of distinguishing between rightsand privileges on the formal basis of universality.As to the third, the author argues the non-disposability is notlogically entailed by universality.     

Oriental medicine professionals' duty to inform patients

Oriental medicine has constituted a significant portion of health care in Korea, but discussion regarding the legal duties of Oriental medicine professionals has been marginalized. This article proposes the first step in discussing the duty of Oriental doctors and pharmacists to inform their patients about the medicine they provide. It begins by introducing the only decision the Supreme Court of Korea has made regarding the legal obligation of Oriental medicine professionals, where the Court held that the Oriental medicine retailer had a duty to provide information about the medicine being sold. This article supports that decision of the Supreme Court and further argues that other primary providers of Oriental medicine-Oriental doctors and pharmacists-should also bear the duty to inform. The conclusion is driven from the fundamental principle of the Korean Constitution: that everyone is entitled to the right to self-determination. In discussing the scope of information doctors and pharmacists should provide, this article notes the unique features of Oriental medicine used in Korea. The author concludes that Oriental doctors and pharmacists should inform their patients of the nature and effect of the medicine being provided, detailed usage instructions, potential risks associated with the medicine, and information regarding combined use with conventional medicine. As for restorative Oriental medicine, doctors and pharmacists should particularly provide instructions regarding its unique restorative purpose.     

Racial disparities in access to long-term care: the illusive pursuit of equity

While nursing homes were insulated from civil-rights enforcement at the time of the implementation of the Medicare program and lagged behind other parts of the health sector in providing comparable access to minorities, they are the only providers for which current reporting requirements make it possible to fully assess racial disparities in use and quality of care. We find that African Americans' use of nursing homes in 2000 in the United States was 14 percent higher than Caucasians' use. The largest relative African American use of nursing homes in 2000 took place in the South and West. Average nursing-home case-mix acuity for African Americans and Caucasians were essentially identical, suggesting that shifts in payment incentives have eliminated the selective admission of easy-care private-pay (predominantly Caucasian) patients and helped fuel the growth of private pay home care and assisted living for this segment of the population. While these shifts in incentives helped increase the use of nursing homes by African Americans, a high degree of segregation and disparity in the quality of the nursing homes used by African Americans persists. Parity in use is an illusive benchmark for measuring progress in assuring equity in treatment.     

中国法语境中的检察官客观义务

检察官客观义务,是指检察官超越控方立场,坚持客观公正。检察官履行客观义务是检察制度的基本要求,但基于不同的司法制度背景,形成以德国法和美国法为代表的两种类型。检察官为履行打击犯罪的职责需成为热情的控方当事人,又因客观义务而应充当冷静的、无偏倚的司法官,而这两种角色是相冲突的。应当注意客观义务论作用的限度并警惕其可能产生的负面效应,同时注意通过外部制度保证客观义务。在我国,因为检察制度的性质及其制度背景,更须确立检察官客观义务。为此,需要进行一系列的调整,如检讨与合理设定内部绩效制度、在一体化与独立性之间寻找平衡点,尤其应注意遵循诉讼规律,维系诉讼构造功能。     

权利与责任——浅谈舆论监督中的法律关系问题

权利与责任始终是一对相互依赖又相互矛盾的概念。而在新闻媒介这个敏感的领域中,权利与责任更是一个让人欲罢不能的问题。在我国的法律中有明确规定,“人民有知晓重大事件的权利”。获得这种“知晓权”的渠道就是大众传播。但媒介在行使这种舆论监督的权利时却往往遭遇尴尬,有时法律上的援助也显得那么苍白无力。本篇文章就舆论监督中的法律关系问题是从三个方面来讨论的。最后作者认为,权利和责任的平衡不是单方面的事情,是全社会努力才能达到的。     

One for you and two for me: revenue sharing arrangements in charitable healthcare organizations

Charitable healthcare organizations have often borrowed from the methods of their for-profit counterparts in compensating physicians and other business partners. This is done in order to provide needed services to their communities, and to protect their charitable assets by sharing risk and preserving limited capital. One of the most controversial compensation methods in use by such organizations is the revenue sharing arrangement. In use for over thirty years, these arrangements have received close scrutiny and inconsistent treatment by the Internal Revenue Service (IRS) and have been the subject of critics' ire as an impermissible transgression of the fundamental line between charities and commercial enterprises. The author, however, concludes that revenue sharing arrangements serve an important purpose in enabling charitable healthcare organizations to fulfill their missions, that the IRS and the Treasury have now made clear that there is not a higher standard governing their use, and that these arrangements are consistent with charitable operation when an appropriate process and safeguards are in place to prevent payment of unreasonable compensation.     

Medical malpractice in the absence of a doctor-patient relationship: the potential liability of psychiatric examiners in New York State

In New York, psychiatrists (and all physicians) have a duty, in every circumstance with respect to such functions as they are required to undertake, to conduct themselves and all their examinations in a thorough and proper manner. Especially in a forensic setting, psychiatrists must bear in mind that they have a legal duty to perform a competent examination before they render an opinion. It is well established that malpractice liability does not require the preexistence of a doctor-patient relationship based on an undertaking for the purpose of treatment. The author discusses a long line of cases in New York State which holds that psychiatric examiners are potentially liable in malpractice for any breach of duty with respect to those functions that are undertaken. Failure to conduct a proper, careful, and competent examination may result in liability in a variety of areas: competency examinations, commitment proceedings, workers' compensation claims, and so on. Limitations on such malpractice liability are discussed. Unlike some jurisdictions, New York does not accord judicial immunity to psychiatric examiners.     

Drug Reps Off Campus! Promoting Professional Purity by Suppressing Commercial Speech

In the name of restoring professionalism, an influential group of physician-educators have urged academic medical centers to take the lead in purging the house of medicine of the conflicts of interest created by industry's marketing. I argue that this revivalist movement is misguided, uses "conflict of interest" as an epithet, creates counter-productive incentives, and fails the duty to prepare physicians for ethical engagement with their commercial partners in patient care.     

透视美国公司法上的董事忠实义务——兼评我国《公司法》对董事忠实义务之规定

集中管理模式之下的公司董事具有相当大的权力,股东与董事之间难免会产生代理成本,为此法律规定了董事对公司和股东负有信托义务。信托义务主要包括注意义务和忠实义务。我国现行《公司法》对董事忠实义务的规定不够完善,建议我国《公司法》扩大董事忠实义务责任主体的范围,规定举证责任分配,归入权的具体行使主体、行使方式、行使期限等。     

Directors' duty of care to monitor information systems in HMOs: some lessons from the Oxford Health Plan

This paper examines the legal and strategic issues raised by the use of information systems in health maintenance organizations (HMOs) and other managed care organizations. Given the critical nature of information systems to an HMO's business success and regulatory compliance, the large financial investment HMOs make in their systems, and the widely publicized concerns over the year 2000 "millennium bug" problem, information systems are appropriately a matter of concern to an HMO's board of directors. The recent experience of Oxford Health Plans, Inc. offers a case study in the apparent failure of the directors to monitor adequately the in-house development of an information system. The systems disaster which this corporation suffered in 1997 led to a dramatic drop in stock price, from which the company has yet to recover, as well as intense scrutiny by state and federal regulators and countless shareholder derivative actions against the directors. Corporate directors are subject to the fiduciary duty of care. Despite statutes in some states requiring directors to act prudently, state courts almost always apply the standard of gross negligence. As a result, even when directors act without due deliberation in their decision, it is rare that a court will find them to have failed in their duty of care. The business and regulatory community may find otherwise, however, when directors fail to evaluate information systems options carefully and the business suffers as a result.     

Autonomy, consent and persuasion

In this article the author considers whether healthcare professionals should be under a legal duty to persuade their patients to change their minds when they have made an apparently irrational decision.     

论医师的执业义务

民事义务的存在是构成民事责任的前提。本文从侵权行为法的视角,结合法定义务是否来源于制定法的情形,展开论述了医师制定法上的义务和注意义务及两者相应的判断标准,并以个案的评价作为结语。     

City of Revere v. Massachusetts General Hospital: government responsibility for an arrestee's medical care

City of Revere v. Massachusetts General Hospital presented the United States Supreme Court with its first opportunity to consider whether a state or municipality has a constitutional duty to pay for medical treatment received by an individual in police custody. The Supreme Judicial Court of Massachusetts had held that the city had an eighth amendment duty to pay for an arrestee's treatment. The U.S. Supreme Court reversed, observing that eighth amendment rights and duties are not implicated prior to conviction and that fourteenth amendment due process concerns were met once the arrestee received adequate medical care. No obligation to pay arises, the Court held, absent a specific state law provision requiring such payment. Because arrestees are subject to physical restraints similar to those imposed on convicted prisoners, this Case Comment argues that courts undertaking to determine the scope of a state's duty to provide treatment to arrestees should apply a due process standard which draws upon eighth amendment analysis. The Comment concludes that under such an eighth amendment equivalence approach, no duty to pay arises because the state's failure to pay the health care provider does not reflect "deliberate indifference" towards the recipient of the treatment.     

论雇主的保护照顾义务

雇主的保护照顾义务在我国学界未受到足够的重视,世界各国对其性质也有不同的认识,本文在梳理其各种认识的同时,分析了赋予雇主保护照顾义务的法理依据,阐述了雇主保护照顾义务的内容及违反义务的损害赔偿责任。     

Directors' Duties to Creditors: Contractarian Concerns Relating to Efficiency and Over-Protection of Creditors

There is case law to the effect that when companies are in financial difficulty directors owe a duty to take into account the interests of their companies' creditors. This article examines the primary reasons why contractarian theory, as applied by the law and economics school, is opposed to the existence of such a responsibility, namely it undermines efficiency and creditors can take measures in order to protect themselves adequately. The article asserts that efficiency cannot alone determine whether a duty should or should not be imposed on directors. Another critical value, fairness, must also be considered, and this value justifies the duty on the basis, inter alia, that many creditors are not able to protect themselves adequately, or at all by contracting, and are deserving of the limited protection that the duty would bring. In any event, it is submitted that a duty to creditors would enhance efficiency in some respects and warrants consideration on that basis.     

Consumer managed care appeals: are the available procedural protections fundamentally fair?

Managed care incentives to reduce costs have also resulted in incentives to deny care. Anecdotes concerning managed care denials of care have led to a consumer outcry for protection either through the use of procedural due process or by the establishment of patient rights that would include appeal and grievance protections. This Article reviews the procedural protections of constitutional due process, the Consumer Due Process Protocol, and the Patient Bill of Rights. The Article then extensively discusses the availability of these procedural protections in various public and private forums. The discussion of public forums includes proposals contained in recent national legislative initiatives. The author then reviews relevant federal and state law, as well as Uniform Law proposals. Next, the Article analyzes the protections provided by accreditation agencies, dispute resolution organizations, professional organizations, and health insurers. Finally, the author recommends criteria to be used to determine whether a procedure is fundamentally fair.     

Dangerous patients and duties to warn: a European human rights perspective

The recent case of David Bradley, who shot and killed four members of his family after telling his doctor he 'wanted to kill someone', has raised the question of whether a healthcare professional could ever be held liable for failing to take steps to constrain a potentially dangerous patient. Until recently, it was considered that the United Kingdom courts would be reluctant to impose a duty to protect third parties. However, the European Court of Human Rights' decision in Osman v UK--while not directly concerning healthcare professionals--has opened the door for just such a duty. When this duty will arise, and how it can be discharged, remain challenging questions. Furthermore, healthcare professionals face the unenviable task of balancing competing duties, in which the rights--and safety--of their patients must also be borne in mind.     

Revisiting the duty of care of the nonprofit director

The current corporate responsibility environment has prompted interested stakeholders, including legislators and state charity law officials, to more closely evaluate what constitutes the proper exercise of the "duty of care" by the director of a nonprofit corporation. The authors review recent developments affecting duty-of-care obligations and conclude that corporate responsibility and related concepts are likely to require directors to give greater consideration to the exercise of their "oversight" obligations as subsumed within the duty of care. The Article identifies a number of recent instances in which state charity law officials and other third parties have raised issues associated with the proper exercise of directors' oversight obligation, and concludes that directors of nonprofits will require greater counseling on their duty-of-care obligations in order to reduce their liability profile in an increasingly contentious environment.